The HFEA’s new Code of Practice, which comes into force today, contains new guidance for UK fertility clinics dealing with surrogacy cases. The changes affect how clinics deal with the forms which allocate legal parenthood in surrogacy cases.
Cases where the surrogate is married or in a civil partnership
If the surrogate is married or in a civil partnership, she and her husband (or civil partner) will be the legal parents of the child. There may be some rare cases in which the surrogate’s spouse does not consent to the arrangement as a question of fact (for example if the couple are separated) and in such cases the clinic should obtain evidence of this by asking the surrogate mother to complete and sign Form LC. However, in the vast majority of cases a surrogate’s spouse cannot simply opt out of becoming a legal parent by signing a withdrawal of consent form.
The HFEA gives new guidance making this clear, and instructions to clinics about how the paperwork should be completed.
Cases where the surrogate is not married
If the surrogate is legally single (or if her spouse genuinely does not consent), there is new guidance on what clinics should do. The HFEA no longer says that in these circumstances the child has no second legal parent. Instead, the new rules provide that there are choices to be made as to who can be named on the child’s first birth certificate with the surrogate mother (something which brings the HFEA guidance into line with the approach of the family courts and register offices).
In practice, there are three options and clinics will need to consider the alternatives carefully with patients before treatment proceeds:
1) Do nothing – the intended (biological) father will be the legal father and can be named on the birth certificate with the surrogate. No parenthood election forms need be signed.
2) Nominate the intended mother as the other parent. The clinic will need to ensure that the new the parenthood election forms for surrogacy (Forms SWP and SPP) are signed by both women before conception. This enables the two women to be named on the birth certificate together when the child is born.
3) Nominate a non-biological father as the father (e.g. the other dad in a gay couple or, probably more rarely, an intended father in a case where a couple is conceiving with the intended mother’s eggs and donor sperm). The clinic will need to ensure the parenthood election forms (SWP and SPP) are signed by the nominated non-biological father and the surrogate mother before conception. The non-biological dad can then be registered on the birth certificate with the surrogate.
The parenthood election forms are critical documents which patients will need when they go and register their child’s birth, so it is important that licensed centres provide patients with a copy and keep a copy on file. They must be signed before artificial insemination or embryo transfer to be legally effective.
Intended parents will still need to apply for a parental order after their child is born to secure their joint parentage and to extinguish their surrogate’s legal responsibilites. This will, in the long run, give the intended parents a birth certificate naming them both as the parents - the new HFEA rules only deal with the interim position before this process is complete. It is therefore also important that licensed centres are familiar with parental orders, or otherwise make sure their patients have legal advice.
There is more information and FAQs from the HFEA here and more information about legal parenthood after surrogacy on our website. We have assisted the HFEA with its new guidance, and have worked with hundreds of families created through surrogacy. We can offer training to licensed centres, and advice and support to families with navigating these new rules.