International surrogacy arrangements and Covid-19

Many intended parents in the UK enter into surrogacy arrangements overseas. As surrogacy arrangements are heavily regulated in England, some families seek greater certainty of outcome, so they travel to places such as California where surrogacy contracts are enforceable, which is not the case in the UK.

In England, the woman who gives birth to a child is automatically the legal mother. In the case of a child born by way of surrogacy, the surrogate mother is therefore the legal mother. In order for the intended parents to gain parental responsibility for the child, they must apply to court for a parental order. The parental order gives legal parenthood and parental responsibility to the intended parents, providing them with the right and ability to make key decisions about their child’s life. The order permanently ends the legal parenthood of the surrogate.

Given that parental responsibility affords parents the right to make important decisions about their child’s life, including in relation to medical treatment, it is vital that the intended parents of a child born by way of surrogacy are able to take any such decisions in a time of pandemic when major healthcare decisions might have to be made.

Many countries have invoked extensive travel restrictions and compulsory quarantine periods upon entry due to the pandemic. It has, therefore, become difficult, or even impossible in some cases, for intended parents to travel to be present at the time of the birth of their child. The imminent arrival of a baby is an anxious time, so this will be a very difficult situation for intended parents, particularly given the lack of clarity about when restrictions will be lifted.

Legally, this might also cause significant issues. In England, intended parents cannot apply for a parental order until the baby is at least six weeks old, meaning the surrogate mother is the legal mother for at least this period.  However, there is no internationally consistent regime for regulating surrogacy arrangements. Therefore, there is no guarantee that the laws on parental status in the surrogate’s country aligns with the position in England.  For example, in another jurisdiction, the intended parents may be recognised as the legal parents of the child from birth, with this status never being assigned to the surrogate.  If travel restrictions or quarantine make it impossible for intended parents to be present at the time of birth and immediately thereafter to care for the child, this could effectively leave a child legally ‘parentless’.

If the surrogate is unable or unwilling to care for the baby until the intended parents can collect their baby, urgent consideration might need to be given to the appointment of someone in the country of birth to act as a ‘guardian’ in the interim to do the following: care for the baby, make decisions, if required, relating to medical treatment and for administrative purposes, for example, in order to make applications for birth certificates and passports. However, it is likely that some intended parents who travel abroad for surrogacy may not have anyone in the country of their baby’s birth who they could assign such a role to, as they may only know the surrogate and their contacts within the surrogacy agency

1. Stranded Children

Many countries have invoked extensive travel restrictions and compulsory quarantine periods upon entry due to the pandemic. It has, therefore, become difficult, or even impossible in some cases, for intended parents to travel to be present at the time of the birth of their child. The imminent arrival of a baby is an anxious time, so this will be a very difficult situation for intended parents, particularly given the lack of clarity about when restrictions will be lifted.

Legally, this might also cause significant issues. In England, intended parents cannot apply for a parental order until the baby is at least six weeks old, meaning the surrogate mother is the legal mother for at least this period.  However, there is no internationally consistent regime for regulating surrogacy arrangements. Therefore, there is no guarantee that the laws on parental status in the surrogate’s country aligns with the position in England.  For example, in another jurisdiction, the intended parents may be recognised as the legal parents of the child from birth, with this status never being assigned to the surrogate.  If travel restrictions or quarantine make it impossible for intended parents to be present at the time of birth and immediately thereafter to care for the child, this could effectively leave a child legally ‘parentless’.

If the surrogate is unable or unwilling to care for the baby until the intended parents can collect their baby, urgent consideration might need to be given to the appointment of someone in the country of birth to act as a ‘guardian’ in the interim to do the following: care for the baby, make decisions, if required, relating to medical treatment and for administrative purposes, for example, in order to make applications for birth certificates and passports. However, it is likely that some intended parents who travel abroad for surrogacy may not have anyone in the country of their baby’s birth who they could assign such a role to, as they may only know the surrogate and their contacts within the surrogacy agency.

2. Parental orders

The conditions for obtaining a parental order, to transfer legal parenthood to the intended parents, may throw up potential problems as a result of COVID-19. Firstly, there is a requirement that the child must reside with the intended parents and secondly, there is a six-month time limit (under section 54(3) of the Human Fertilisation and Embryology Act 2008) to make an application. In the current circumstances, it is clear that intended parents may have difficulty meeting either, or both, of these requirements.

In making decisions, the welfare of the child is the court’s paramount concern. The court has in a previous reported case, extended the six month time limit in order to protect the welfare of the child and to ensure that the child’s Article 8 right to family and private life is protected. It is hoped that in the current circumstances, the courts will take a similarly pragmatic approach where the six-month time limit has passed.

3. Delays in the Legal System

The English family courts currently remain open, with many hearings being conducted remotely by telephone or video call. Whilst there may be some delays with processing court applications, due to reduced capacity, urgent applications are still being prioritised.

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