If you are a fan of the Kardashians, I know some of us would prefer not to admit it, I am sure that you will have been following the latest update in the Kim and Kanye marital saga.
It was reported last week that the Kim Kardashian and Kanye West family may be growing, as Kim has agreed to hire and pay a surrogate in excess of $110,000 (£83,100) to carry their third child. 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.
As many of you may or may not know, 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 commercial.
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. The legal father after the birth will be the surrogate’s husband or civil partner, provided that they consented to the surrogacy arrangement. Again, this will be regardless of biology. The intended father will only be the legal father of the child if he is the biological father and the surrogate mother is single (or did not have consent of their husband or civil partner to go ahead with the surrogacy arrangement). Any agreement made prior to the birth between the intended parents and the surrogate will not be legally enforceable and cannot be relied upon by either party.
The question is then, how do the intended parents gain rights to the child?
To transfer parenthood from the surrogate parents to the intended parents, a Parental Order is needed. If granted, the Order will give the surrogate parents full parental status and parental responsibility. Importantly, all links between the child and the surrogate mother, legally, will then be extinguished. A parental order is integral in all surrogacy cases and once granted, a new birth certificate with the details of the intended, now legal parents, will be issued protecting the parents under the law. However, it is important to note that 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.
Although it may seem more convenient to go down the route of Kim and Kanye simply parting with cash in return for child of your dreams, English law is stringent on this. Careful planning throughout the process is essential to avoid any potential disagreements and heartache in the future.
We recommend that, if you are considering going abroad to find a surrogate, to seek legal advice in both countries beforehand to avoid any future complications.
Finally, Kim and Kanye, if you are reading this (we are naturally ambitious as a firm) we wish you the best of luck!
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