Kim Kardashian West and her husband Kanye West yesterday became parents to a baby girl, delivered via a surrogate.
“Kanye and I are happy to announce the arrival of our healthy, beautiful baby girl,” announced the reality TV star.
“We are incredibly grateful to our surrogate who made our dreams come true with the greatest gift one could give.”
When news broke last summer that the couple had struck a deal with a surrogate mother, worth $113,000, it propelled surrogacy as a route to parenthood into the mainstream.
Kim, who was diagnosed with placenta accrete, a condition that makes another pregnancy life-threatening, and Kanye opted to use a surrogate agency (which would earn $68,850), to source and agree a fee for the surrogate mother of $45,000, reports said.
The huge sums involved highlights a stark contrast between how different jurisdictions treat surrogacy.
At SM&B the Family team is increasingly called upon to advise in similar, non-traditional parenting scenarios. Below we consider the legal framework underpinning surrogacy in England and Wales.
Surrogacy in the UK is governed by the Human Fertilisation and Embryology Acts 1990 and 2008. For a child born from a surrogacy arrangement to be the legal child of the prospective parents, they must apply for a parental order from the courts and satisfy strict criteria.
Unlike in the States, in the UK it is illegal to negotiate surrogacy arrangements on a commercial basis. And crucially, the surrogate can only be paid for reasonable expenses – any further payments to the surrogate could lead the court to reject the application, meaning the child would remain the legal responsibility of the surrogate mother.
Recent figures show that only a small amount of parents who have children born through surrogacy actually obtain the parental order required to ensure they are the legal parents. Cafcass estimated this figure to be 12%, meaning for the remaining 88%, the child’s parents under UK law would be the surrogate mother (and her partner if she has one).
Complications arise when surrogacy involves an international element, which very frequently is the case. Approximately 95% of surrogate children are born overseas, often to surrogates who face extreme economic hardship and do not possess identification documents. If the child is subsequently brought to live in the UK and the applicants fail to obtain a parental order, an inability to locate the surrogate mother could mean the child could end up both parentless and stateless in the eyes of the law.
Parental orders for surrogacy necessarily require the use of gametes from at least one of the applicants to bring about conception. Sperm donation from third parties is a bar to obtaining such an order.
The courts must also be satisfied that a number of further conditions are met when making the order:
a. the applicants must be married or in a civil partnership, or be living as partners in an enduring family relationship;
b. the order must be applied for during the period of 6 months from the child’s birth;
c. the child must be living with the applicants at the time of birth and the making of the order, and one of the parents must be domiciled in the UK
d. both applicants must be over 18; and
e. the surrogate and any other person who is a parent of the child (other than the applicants) must have knowingly, freely and unconditionally consented to the making of the order.
In addition, the paramount consideration of the court is the child’s welfare, throughout their life. For example, the court will look at the applicants’ ability to provide for the child’s needs, whether any of the child’s characteristics may mean living with the applicants is a risk, the feelings of the child’s relatives, and any risk of the child suffering harm as a result of the order.
The effect of the parental order is that the child will be treated in law as the child of the applicants from the date of its birth, as compared with adoption, when the parental status takes effect from the date of the adoption order.
At present, parental orders are not available to single applicants. However, the High Court recently made a declaration of incompatibility on this, on the grounds that the legislation governing surrogacy was incompatible with human rights laws, paving the way for law reform. It is currently being reviewed by the Law Commission.
The number of surrogacy arrangements in Britain is steadily increasing as more people look for alternative routes to having children. While the law has not quite kept pace with the change in social attitudes, recent case law suggests reforms are coming. The only question, with the legislative agenda seemingly clogged up by Brexit, is when.
Written by Robert Hepburn, Trainee Lawyer in the Family Department.
SM&B has a team of highly experienced, market leading family lawyers, and is perfectly placed to guide clients through every step of the surrogacy process.