The Human Fertilisation and Embryology Authority (HFEA) voted on 20 March 2013 to update the guidance it gives to UK fertility clinics on surrogacy. It is a welcome decision that will mean better support for the growing numbers of families created through surrogacy in the UK.
The HFEA also held a workshop on 30 April 2013 to gather input and practical feedback, which will be fed into the new Code of Practice guidance and new consent forms expected to come into force on 1 October 2013. The HFEA will also be uploading FAQs and detailed guidance on its website for anyone interested who was unable to attend the workshop.
So what is changing?
The main change will be to the guidance given on legal parenthood in surrogacy cases. Following external legal advice and discussion of how best to protect all those involved in surrogacy (including advice from us as a family law firm specialising in surrogacy), the HFEA has decided to bring its guidance into line with wider practice on surrogacy on the ground. The new Code of Practice will therefore clarify that legal parenthood in surrogacy cases works as follows:
As in the previous guidance, the surrogate is always the legal mother.
If the surrogate is married, her husband is the legal father (or if she is in a civil partnership her partner is the other parent) unless it is shown that he or she does not consent to the conception. In practice, being able to establish a husband's lack of consent in these circumstances is not just a question of how the paperwork is signed, and the family courts and register office will only accept that he is not the legal father if, as a question of fact, he does not consent (for example where he is separated from the surrogate and not involved).
If the surrogate is unmarried, then there are several different scenarios, and the position needs to be planned carefully before conception so that the paperwork is completed correctly:
The intended parents can nominate the intended mother to go on the birth certificate with the surrogate. Both women have to sign the parenthood election forms before conception to do this. The HFEA will be creating new surrogacy-specific forms to deal with this, since the current forms WP and PP assume that the two women are lesbian partners, which will not be the case in surrogacy situations; or
The intended parents can nominate a man who is not the biological father
to be the legal father. This might apply, for example, if donor sperm is used, or if the intended parents are a gay couple and want to
nominate the non-biological dad as the legal father (again there will be
new surrogacy-specific forms for this); or
If no parenthood election forms are signed, and the intended father provides his sperm, he can be named on the birth certificate by default. This is probably the most common scenario in practice, and it represents the biggest change to the current HFEA guidance. The current Code of Practice says that the parentage of an intended father in these circumstances is excluded because he is registered as a donor, and that the child therefore has no legal father. This has long been inconsistent with what happens in reality at register offices and in the family courts (where intended fathers have always been recognised as legal fathers). The new HFEA Code of Practice will therefore make it clear that, even though an intended father will continue to be screened as if he were a donor, he can be the legal father because the sperm is being used for his 'personal use'.
The other important issue on legal parenthood is that clinics need to make clear that this position is always only temporary. Intended parents can apply to the family court within the six months after their child is born for a 'parental order'. The court order will ultimately give the parents a reissued birth certificate naming them both as legal parents, and extinguishing the legal responsibilities of the surrogate (and her husband, where relevant). There are various strict criteria for getting a parental order, and it is important that clinicians have at least a basic understanding of these. If clinics are referring patients abroad for surrogacy, they will also need to make clear that the legalities are complex, and UK law will not automatically recognise a foreign birth certificate which names their patients as the parents.
Wider practical guidance
It is good news for patients that the HFEA's forms and clinic protocols for surrogacy cases are being clarified. As surrogacy professionals, we often see that the quality of advice given to surrogacy patients by clinics is variable, and sometimes downright wrong. Common errors include advising patients that they need a legally binding surrogacy agreement, giving incorrect information about how much can be paid to a surrogate, or giving a misleading picture about the risks of the surrogate changing her mind and what happens if she does. There is also often confusion about how consent and other HFEA forms should be completed.
This is perhaps not surprising given the complexity of the law and the fact that surrogacy is still relatively rare for many clinicians. But it is not good enough. As surrogacy is becoming more common, we need to make sure that it is handled consistently and professionally, and that everyone involved (most importantly the intended child) is protected as far as possible. The HFEA has an important role to play in ensuring that patients have the best possible information, and that protocols are consistent and watertight. I, for one, therefore welcome the HFEA's decision to review its guidance on surrogacy and look forward to the new Code of Practice.