Is surrogacy straightforward?

Kim Kardashian West expecting baby No. 4 via surrogacy

It seems like only yesterday that we were blogging about Kim Kardashian West and rapper husband Kanye West announcing the birth of their third child, Chicago West, via surrogacy in January 2018. Twelve months later and the beauty mogul and rapper have started off the New Year by announcing that they are now expecting their fourth baby, again via surrogacy and (drum roll) it’s a boy!

It was reported yesterday that the Kim Kardashian and Kanye West family may be growing, as Kim has agreed to hire and pay a surrogate to carry their fourth child following a positive surrogacy experience resulting in the birth of their third child Chicago last year. Surrogacy is an exciting lifeline for many people creating families and although at first glance it may seem like a straightforward process, in reality it can be quite complex.

It is in fact illegal to pay for a surrogate in the UK (beyond reasonable expenses). Equally, a surrogate cannot offer to carry a child for commercial means i.e. for physical rewards/gifts and it is important to give careful thought and consideration to ensure that any surrogacy arrangement entered into is not for a commercial benefit.

Who are the legal parents?

Under English law, the surrogate will be the legal mother of the child at birth and the intended mother will have no status as a parent regardless of biology or prior agreements. If the surrogate is married or in a civil partnership and her husband or civil partner has consented to the surrogacy arrangement, her husband or civil partner will be the legal father at birth again, regardless of biology. The intended father will only be the legal father of the child if

1. He is the biological father; and
2. The surrogate mother is single or their husband/partner did not consent.

This is not to say that the legal status of the parents following a birth via surrogacy cannot change. The intended parents can make an application to court under Section 54 Human Fertilisation and Embryology Act 2008 for a parental order to ensure that they replace the surrogate (and her husband/partner) as the legal parents after the birth. A parental order extinguishes all links between the child and the surrogate mother and is essential in all surrogacy cases. The application for a parental order must be made within 6 months of the child’s birth, although cannot be done validly within 6 weeks of the birth.

Single parents and surrogacy

It was previously the case under the law in England and Wales that single parents were unable to obtain a parental order necessary to extinguish the links between the child and the legal mother. In order to meet the requirements of obtaining a parental order the Applicants had to be married, civil partners or in an enduring family relationship – requirements that cannot be met by single parents.

However, following the judgement of Sir James Munby in the case of Re Z (A Child), a draft remedial order putting forward a change to UK fertility law was sent to Parliament in December 2017. On 4 May 2018 it was announced that the Law Commission had started work on the review of laws and it has today been confirmed that single parents who have a child born through surrogacy are now able to apply for a parental order in the UK as the Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018 has come into force.

For those single parents who already have a child born through surrogacy, it is important to know that there is now a six-month period in which you can apply for a parental order and we recommend that if you are considering surrogacy to seek legal advice beforehand to avoid any future complications.