Love them or loathe them, Kim and Kanye West’s decision to use a surrogate mother in the creation of their family has placed the international media spotlight firmly on surrogacy.

The Wests are far from alone, with the latest CAFCASS figures showing parental order applications in England and Wales have risen from 44 to 220 over ten years to 2015.  The case law shows us that these cases are increasing and the cases are, in the words of Mrs Justice King (as was), “valuable cautionary tales”.

The origins of surrogacy are historically and culturally deep rooted, with reference to early forms of surrogates traced back to the Bible in the Old Testament tale of Sarah and Abraham and even earlier.  Yet the law is relatively new, and the area is still relatively unregulated in England with comparisons less West Coast and more Wild West.  The Law Commission has highlighted this area for review.

If you are an intended parent or surrogate, you need a specialist child law family lawyer and this is why:-

• You should have an agreement.  The UK government has just issued new guidance on 28 February 2018 which recommends that parties enter into surrogacy agreements even though they are not legally binding.
• To apply for a parental order.  Since the case of “baby Cotton” in the 1980’s and unlike California, commercial surrogacy is illegal in the UK, although the Human Fertilisation and Embryology Act (“HFEA”) 1990 allows reasonable expenses to be paid.  This Act only permitted married heterosexual couples to apply for parental orders, until reform came in the Human Fertilisation and Embryology Act 2008 which extended these orders to same sex couples or those in an “enduring family relationship” (the latter since April 2010).  The President of the Family Division, Sir James Munby decided in X (A Child) that a sexual relationship between a husband and wife was unnecessary for a marriage to be valid.  The HFEA requires an application for a parental order to be made within 6 months from birth, and UK domicile but we can guide you on the case law which has permitted extensions.
• If you’re single.   The law requires 2 applicants to make a parental order.  However, in the case of Z (A Child) (No 2) [2016] this was held to be a breach of human rights and the effect of a remedial order to change the law to allow single parents to apply is awaited.  Until then, we can advise you what orders you can apply for.
• To decide what is best for your child.  Critically, a parental order safeguards a child’s welfare by making the child a member of your family and extinguishing the surrogate’s parental status or making them a citizen.  When arrangements break down, the Court of Appeal tells us that welfare is the test H (A Child: Surrogacy Breakdown) [2017].

For a no obligation discussion about your children Go West to our new Hammersmith Office or, our South West office.

Together, we will advise you about creating your family sensitively, discreetly and cost effectively. To discuss any of these issues call Antonia, Peter or Jo and the team in confidence on 02038249950 or mail@burgessmee.com

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