Western Mail, 17th March 2010
Thanks to a change in the law, thousands of couples in Wales can start families through surrogacy. Here Melanie Hamer, a partner with leading Welsh family law firm Wendy Hopkins Family Law Practice, looks at what prospective parents must bear in mind when considering this option.

MORE and more married couples in Wales are turning to surrogacy as a way to fulfil their dreams of starting a family.

There has been growing support for unmarried and gay couples to enjoy the same rights. Celebrities like John Barrowman have been vocal about their desire to have a baby through surrogacy, while millions will have watched Matthew Rhys’ character “Kevin” in the hit US show Brothers and Sisters striving for that chance.

From 6th April this year, the law on surrogacy in England and Wales is changing. The changes will make it easier for people to start families in this way, but there are also new responsibilities and challenges for would-be parents to consider.

A question I am often asked is whether surrogacy is legal in this country. The short answer is “yes”, but there are restrictions which determine who can become the parents of a baby born to a surrogate mother, and how they must go about it.

Kim Cotton became the first high-profile surrogate mother in the UK in 1985, giving birth to a baby for a foreign couple in exchange for payment. Such an arrangement would be illegal today.

As the law currently stands, prospective parents over 18 who wish to have a baby via a surrogate must meet certain requirements. At least one of them must be a biological parent of the baby; at least one of them must be domiciled in the UK – and crucially, they must be married.

However, as of 6th April, the same rights will be extended to unmarried couples and civil partners, opening up new opportunities for childless couples across Wales.

These would-be parents must be careful in how they go about arranging a surrogate pregnancy. For example, it is illegal for parents to directly advertise for a surrogate, or for surrogates to advertise their services to hopeful parents.

It is also usually illegal to be paid to carry a baby, although surrogates can receive “reasonable expenses”.

Surrogates may change their mind at any time, leaving little recourse for disappointed parents; a properly-drafted surrogacy agreement can help minimise these risks. Surrogacy agreements are not binding in England and Wales, unlike some US states, but it is still important to have one in place so everyone knows where they stand.

New parents should also be aware that in the eyes of the law, the starting point is always that the woman who actually gives birth to a baby is legally considered to be the child’s mother, regardless of whether the baby was conceived via an egg donor.

Parents can now apply for a document, called a “parental order”, to get around this problem. This allows married couples – and after 6th April, unmarried couples or same-sex couples in civil partnerships – to be legally registered as a child’s parents, regardless of who physically gave birth to the baby. Once a parental order is in place, the surrogate will no longer be considered the child’s legal mother.

Restrictions still apply. A parental order will not be granted before a baby is born, or until six weeks after birth, so no-one can apply in advance to be named as a parent. However, the order must be registered within six months of a child’s birth – otherwise, the opportunity is lost forever, and the surrogate will remain registered as the baby’s mother.

Perhaps most importantly, the surrogate must also agree to come off the record as the child’s mother before a parental order can be made.

However, if a surrogate mother is married, or in a civil partnership, both she and her partner will be automatically registered as a child’s legal parents – regardless of whose eggs and sperm were used to conceive the baby – and they must both agree to relinquish their status as parents before any order will be granted.

Although the number of cases in which surrogates change their minds is statistically extremely low, there is nothing in the law to force a surrogate or her partner to agree to such an order.

This is why a well-drafted surrogacy agreement can be especially important. It is vital for anyone considering surrogacy as an option to make sure everyone involved goes in with their eyes open.

Surrogacy offers the chance of parenthood to thousands of couples in Wales, and the changes in the law will offer that chance to many thousands more, but anyone considering starting a family this way should always make sure they have the best possible advice from a qualified specialist before embarking on their momentous journey.