Surrogacy is now often in the news, fueled by both our celebrity culture and by increasing awareness of the possibilities afforded by a plethora of new technologies in assisted reproduction. In fact, surrogacy is part of “fertility tourism” where couples or individuals choose to travel to other jurisdictions with a view to accessing services which may be prohibited, not available or too expensive in their native land. Such treatments are reported to number between 20,000 and 25,000 events per annum worldwide. The desire for a child has developed into a significant business sector and with differing international moral/ethical perspectives, the law has evolved quite differently in different cultures, where attitudes towards surrogacy vary from altruism to pure commerciality.
There are several reasons why couple may choose the surrogacy option, including; a) couples who cannot, for whatever reason, have their own children, b) same sex couples desirous of a biological relationship with a child or perhaps more rarely, c) by social choice. In the UK the woman who carries the child and subsequently gives birth to the child is seen as the child’s legal mother. If this surrogate is married or in a civil partnership, their spouse could also be a legal parent of the child. In England at least, surrogacy contracts are not capable of legal recognition, which means the arrangements entered into under a compensated (reasonable expenses only) surrogacy are no more than informal agreements that rely on trust for their execution on both sides. For the legal rights of the child to be transferred from the surrogate to the intended parents (who commissioned the surrogate - notwithstanding that at least one of them may have a biological relationship to the child), an application for a parental order will need to be made within six months of the child’s birth. In doing so, the applicants are asked if they are “a genetic parent of the child”, a fact that can only be established be use of a DNA test which is conducted by an MoJ accredited provider, such as Complement Genomics and dadcheckgold.
In terms of fertility tourism, the current preferred destinations are those where jurisdictions permit “paid for” gestational surrogacy and the intended parents can gain legal rights over the child. This may either be by gaining direct parental rights or by making use of streamlined adoption procedures. It is the case that DNA testing is often required by the home authorities
to prove the parentage of one or both of the donors after overseas surrogacy, by use of either a paternity or maternity DNA test, or both.
The Ukraine, Russia and Georgia have liberal laws regarding commercial surrogacy (including for foreigners) and are the current destinations of choice. Indeed, many UK couples are choosing the Ukraine since:
- The intended parents of the child are considered to be the biological parents from the conception
- The intended parents are specifically named on the birth certificate to the exclusion of the surrogate mother or any donor
- The surrogate mother cannot by law keep the child after birth
- A donor or surrogate mother has no parental rights over the child and no adoption of the child is required
- There are no restrictions on the payments.
The written and informed consent of all parties and a notarised surrogacy agreement is required (and which can be complex), plus there is the presumption that the intended parents are married, so a translated and notarised copy of the marriage certificate is also necessary.
For British parents using a surrogate in the Ukraine it is often more convenient to locally obtain a UK passport for the child once born, although proof of the genetic relationship to one or both of the intended parents is generally necessary. This can be arranged by contacting us using the details below.
The progressive approach of the authorities in the Ukraine, Russian Federation and US has already helped many childless UK couples and the law is highly favourable towards surrogacy in these jurisdictions. For intending parents wishing to go down this route, then appointment of an experienced UK based solicitor and an accredited DNA testing company is essential..
Nicola Lowes, LLM and Neil Sullivan, MBA, LLM, PhD
To discuss DNA testing for a surrogacy case, please call 0191 543 6334 or e-mail: firstname.lastname@example.org.
Complement Genomics Ltd, the provider of the dadcheckgold service, is accredited by the Ministry of Justice as a body that may to carry out parentage tests as directed by the civil courts of England and Wales under section 20 of the Family Law Reform Act 1969.
Types of surrogacy
“Traditional” surrogacy involves insertion of sperm into the fallopian tube of the surrogate mother, who by virtue of using her own egg, is the biological mother of the child.
“Gestational” surrogacy, often referred to as in vitro fertilization (IVF), involves implantation into a surrogate of an externally fertilized embryo where the intended parents provide the biological material and of the egg and sperm both, either or neither of which may be from a donor. Importantly, the child and the surrogate mother are biologically independent of one another.
1 - Form C51: Application for a Parental Order (Section 54 Human Fertilization and Embryology Act 2008).
2- Article 123 of the Ukrainian Family Code (as amended 22/12/2006, No 524-V) and Orders 24 and 771 of the Health Ministry of Ukraine.