An Act to regulate certain activities in connection with arrangements made with a view to women carrying children as surrogate mothers. [ 16th July 1985]
BE IT ENACTED by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:
1. Meaning of "surrogate mother", "surrogate arrangement" and other terms.
(1) The following provisions shall have effect for the interpretation of this Act.
(2) "Surrogate mother" means a woman who carries a child in pursuance of an arrangement --(a) made before she began to carry the child, and
(b) made with a view to any child carried in pursuance of it being handed over to, and the parental rights being exercised (so far as practicable) by, another person or other persons.(3) An arrangement is a surrogacy arrangement if, were a woman to whom the arrangement relates to carry a child in pursuance of it, she would be a surrogate mother.
(4) In determining whether an arrangement is made with such a view as is mentioned in subsection (2) above regard may be had to the circumstances as a whole (and, in particular, where there is a promise or understanding that any payment will or may be made to the woman or for her benefit in respect of the carrying of any child in pursuance of the arrangement, to that promise or understanding).
(5) An arrangement may be regarded as made with such a view though subject to conditions relating to the handing over of any child.
(6) A woman who carries a child is to be treated for the purposes of subsection (2)(a) above as beginning to carry it at the time of the insemination or, as the case may be, embryo insertion that results in her carrying the child.
(7) "Body of persons" means a body of persons corporate or unincorporate.
(8) "Payment" means payment in money or money's worth.
(9) 'This Act applies to arrangements whether or not they are lawful and whether or not they are enforceable by or against any of the persons making them.
2. Negotiating surrogacy arrangements on a commercial basis, etc
(1) No person shall on a commercial basis do any of the following acts in the United Kingdom, that is --
(a) initiate or take part in any negotiations with a view to the making of a surrogacy arrangement,
(b) offer or agree to negotiate the making of a surrogacy arrangement, or
(c) compile any information with a view to its use in making, or negotiating the making of, surrogacy arrangements;
and no person shall in the United Kingdom knowingly cause another to do any of those acts on a commercial basis.
(2) A person who contravenes subsection (1) above is guilty of an offence ; but it is not a contravention of that subsection --
(a) for a woman, with a view to becoming a surrogate mother herself, to do any act mentioned in that subsection or to cause such an act to be done, or
(b) for tiny person, with a view to a surrogate mother carry-ing a child for him, to do such an act or to cause such an act to be done.
(3) For the purposes of this section, a person does an act on a commercial basis (subject to subsection (4) below) if--
(a) any payment is at any time received by himself or another in respect of it, or
(b) he does it with a view, to any payment being received by himself or another in respect of making, or negotiating or facilitating the making of, any surrogacy arrangement.
In this subsection " payment " does not include payment to or for the benefit of a surrogate mother or prospective surrogate mother.
Applying for Parental Order
Applying for a Parental Order is a very simple process. Although you do not need a solicitor, some people like to have the peace of mind of employing one. See our list of Solicitors below.
To be granted a Parental Order the Intended Parents must be:
Under English law, the Intended Parent must start the application process by completing the form "Application for Parental Order (C51)". This is handed in to the local Family Proceedings Court. The Court will then provide the Intended Parents with Form C52 (Acknowledgement Form). The application process then requires the parents to fill in form C52 and serve it on the Surrogate Mother and her partner (if she has one), together with a copy of their application for a Parental Order (C51). The Surrogate must then complete and return the form to the court.
Under Scottish law the Parental Order form the Intended Parents need is under "Child and Maintenance Rule 1997 Form 22". This is handed in to the Sheriff Court.
The child must already be living with the couple and consent obtained from the Surrogate and the childs Legal Father. The Surrogacy Arrangement must have been implemented. No money or other benefit (other than for expenses reasonably incurred) must be paid to the Surrogate unless authorised by the Court.
Once the forms have been handed in to the Court, a date will be given for the Intended Parents to appear. This will be to assign a Parental Order Reporter (previously known as 'Guardian Ad Litem') to the case and to ask him/her how long they will require to prepare the report. The Court will be then adjourned till this date.
The Parental Order Reporters job, when appointed by the Court, will be to enquire as to whether the requirements set out in Section 30 of the HFEA Act 1990 have been complied with and whether there is any reason why a Parental Order should not be made in light of the welfare of the child principle set out in the Adoption Act, as modified by the Parental Orders Regulations.
The Parental Order Reporter will visit the Intended Parents and Surrogate Mother in their respective homes. He/she will ask many questions regarding the Surrogacy Arrangement to make sure everyone entered this of their own free will. She will make sure that nothing untoward happened before, during or after the Arrangement e.g. any large amounts of money changing hands.
On some occasions the Court may ask for a DNA test to prove the parentage of the child. Since one of the requirements to obtain a Parental Order is for at least one of the Intended Parents to be biologically related to the child, they are within their rights to request this. Although it doesn't happen very often, you need to be aware that you may be asked for one.
The Parental Order Reporter will then submit his/her report to the Court and it is up to them to decide whether it is granted or not. Their function is to determine what is in the best interest of the child.
Under English Law, once the Parental Order has been approved, the Intended Parents will receive a new birth certificate stating that the Intended Parents are the legal mother and father of the child.
In Scotland, the Intended Parents will receive an extract of the Parental Order which does look very similar to a birth certificate but has the words 'Extract of the Parental Order' in the top left hand corner.
Registering the birth of a surrogate child and the Law
English law requires a birth to be registered within 6 weeks. If the Surrogate Mother is married, she and her husband will be named on the original birth certificate as the parents. If the Surrogates Husband is willing to write a letter stating he didnt give permission for the arrangement, the Intended Father can be named as the father. If she is unmarried and the Intended Father is present at the registering of the birth he can be named as the father. In both scenarios the baby can be given the Intended Parents' surname. Once the birth certificate is completed, if the Intended Father is not named as the father on the birth certificate, then the Surrogate Mother should enter into a Parental Responsibility Agreement with the Intended Father. This is a very simple process and gives both the Surrogate and the Intended Father 50% legal guardianship over the child.
An Intended father that is present at the registration of the birth and named on the birth certificate automatically acquires Parental Responsibility.
Scottish law requires you to register the birth within 21 days. In Scotland, in most cases the intended father will be named on the birth certificate as the surrogate's partner can make a declaration he is not the genetic father and therefore the intended father's name can go on the birth certificate. (This cannot be done in England, unless it can be proved that the surrogate's partner did not consent to the treatment). If for some reason the intended father's name does not appear on the birth certificate, ie in the case of him not been able to attend with the surrogate mother to register the birth, then he should fill out a "Parental Responsibility and Parental Rights Agreement form". The surrogate mother and intended father can visit their own court to fill out this form, they do not have to do it together. You also have the form witnessed by a Justice of the Peace if you know one locally. This is a legal document which the mother must sign. It must be witnessed and filed with the Principal Registry (in England) or registered in the Books of Council and Session (in Scotland). The agreement comes with full instructions on how to complete it and where it should be registered.
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