Helping LGBT Couples To Create Families Through Donor Conception5th Jul 2016
Surrogacy law is still comparatively new. The Human Fertilisation and Embryology Act 2008 answered some important questions but is overdue for an overhaul.
Donor Conception For Lesbian Couples
Lesbian couples planning to start a family will use a sperm donor and decide who will carry the child. Some couples use a donor who is known to them but this risks legal wrangles later on.
Many couples decide to use an anonymous sperm donor for a number of reasons. It can help to minimise the risk of any dispute arising over care of the child in the future.
The sperm donor may be the child’s biological father but he may not be the child’s legal father, depending on whether or not the conceiving parents are married or in a civil partnership at the time of conception. A child can have either one or two legal parents but not three.
When the child reaches the age of 18, they can elect to learn the donor’s identity – giving them the opportunity to contact their biological father. The same rule applies to egg donation where this has been necessary.
Under the law, a child’s legal mother is always the birth mother, regardless of whether or not there is a genetic connection to the child or whether the child was conceived artificially.
Surrogacy For Gay Couples
Male same sex couples often look to surrogacy to help them start a family. At a basic level there are two forms of surrogacy:
- Traditional surrogacy – the child is conceived using the surrogate birth mother’s own eggs
- Gestational (host) surrogacy – an embryo created using eggs from another woman and sperm is transferred into the surrogate mother.
Again, the birth mother is always the legal mother, regardless of whether she or not has any genetic connection with the baby.
If the surrogate mother has a husband (rather than a long term partner) then he will be the legal father of the child (even if he is not the genetic father).
It is absolutely essential for couples planning to start a family through surrogacy to obtain a Parental Order. This confirms the child’s legal parents.
Parental Orders can be granted in the UK only after the birth. This raises serious concerns: what if the surrogate mother decides to keep the child? Who has parental responsibility? It is a significant problem and will remain so until the law is reformed.
America is still the best place to find a surrogate mother. India is another popular destination albeit increasingly uncertain.
Surrogacy is much more commercial in the US and the framework is designed to protect all those involved right from the outset. In some US states it is possible to obtain a pre-birth court order that confers parenthood on the intended parents.
The legal framework in the UK is more restrictive and complex. Even if you are able to resolve the issue of legal parenthood in the US, this is not automatically recognised in the UK.
Applying successfully for a Parental Order in the UK court gives the parents a UK birth certificate that names them as parents.
As you can see, surrogacy and donor conception remains a complex area of the law. It is important to get specialist advice from solicitors with years of experience in this field.
Coles Miller Associate Solicitor and Mediator Richard Perrins is the head of the firm’s Family Law Department. He specialises in surrogacy and fertility law, helping clients all over the country.
Contact him today on 01202 355698 for expert legal advice.