14. Surrogacy

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Human Fertilisation and Embryology Act 2008

PART 2 – Parenthood in cases involving assisted reproduction

  • Parental orders

    54
    (1) On an application made by two people (“the applicants”), the court may make an order providing for a child to be treated in law as the child of the applicants if—

    (a) the child has been carried by a woman who is not one of the applicants, as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination,

    (b) the gametes of at least one of the applicants were used to bring about the creation of the embryo, and

    (c) the conditions in subsections (2) to (8) are satisfied.

    (1A) For the purposes of this section, neither of the following is to be treated as a person whose gametes were used to create an embryo (“embryo E”)—

    (a) where embryo E is a permitted embryo by virtue of regulations under section 3ZA(5) of the 1990 Act, the person whose mitochondrial DNA (not nuclear DNA) was used to bring about the creation of embryo E;

    (b) where embryo E has been created by the fertilisation of an egg which was a permitted egg by virtue of regulations under section 3ZA(5) of the 1990 Act, the person whose mitochondrial DNA (not nuclear DNA) was used to bring about the creation of that permitted egg.

    (3B) For the purposes of this Schedule, in a case where an egg is permitted egg by virtue of regulations under section 3ZA(5) the egg is not to be treated as the egg of the person whose mitochondrial DNA (not nuclear DNA) was used to bring about the creation of that permitted egg.

    (2) The applicants must be—

    (a) husband and wife,

    (b) civil partners of each other, or

    (c) two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other.

    (3) Except in a case falling within subsection (11), the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born.

    (4) At the time of the application and the making of the order—

    (a) the child’s home must be with the applicants, and

    (b) either or both of the applicants must be domiciled in the United Kingdom or in the Channel Islands or the Isle of Man.

    (5) At the time of the making of the order both the applicants must have attained the age of 18.

    (6) The court must be satisfied that both—

    (a) the woman who carried the child, and

    (b) any other person who is a parent of the child but is not one of the applicants (including any man who is the father by virtue of section 35 or 36 or any woman who is a parent by virtue of section 42 or 43),

    have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order.

    (7) Subsection (6) does not require the agreement of a person who cannot be found or is incapable of giving agreement; and the agreement of the woman who carried the child is ineffective for the purpose of that subsection if given by her less than six weeks after the child’s birth.

    (8) The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by either of the applicants for or in consideration of—

    (a) the making of the order,

    (b) any agreement required by subsection (6),

    (c) the handing over of the child to the applicants, or

    (d) the making of arrangements with a view to the making of the order,

    unless authorised by the court.

    (9) For the purposes of an application under this section—

    (a) in relation to England and Wales, section 92(7) to (10) of, and Part 1 of Schedule 11 to, the Children Act 1989 (c. 41) (jurisdiction of courts) apply for the purposes of this section to determine the meaning of “the court” as they apply for the purposes of that Act and proceedings on the application are to be “family proceedings” for the purposes of that Act,

    (b) in relation to Scotland, “the court” means the Court of Session or the sheriff court of the sheriffdom within which the child is, and

    (c) in relation to Northern Ireland, “the court” means the High Court or any county court within whose division the child is.

    (10) Subsection (1)(a) applies whether the woman was in the United Kingdom or elsewhere at the time of the placing in her of the embryo or the sperm and eggs or her artificial insemination.

    (11) An application which—

    (a) relates to a child born before the coming into force of this section, and

    (b) is made by two persons who, throughout the period applicable under subsection (2) of section 30 of the 1990 Act, were not eligible to apply for an order under that section in relation to the child as husband and wife,

    may be made within the period of six months beginning with the day on which this section comes into force.

    Interpretation of Part 2

    58 (1) In this Part “enactment” means an enactment contained in, or in an instrument made under—

    (a) an Act of Parliament,

    (b) an Act of the Scottish Parliament,

    (c) a Measure or Act of the National Assembly for Wales, or

    (d) Northern Ireland legislation.

    (2) For the purposes of this Part, two persons are within prohibited degrees of relationship if one is the other’s parent, grandparent, sister, brother, aunt or uncle; and in this subsection references to relationships—

    (a) are to relationships of the full blood or half blood or, in the case of an adopted person, such of those relationships as would subsist but for adoption, and

    (b) include the relationship of a child with his adoptive, or former adoptive, parents,
    but do not include any other adoptive relationships.

    (3) Other expressions used in this Part and in the 1990 Act have the same meaning in this Part as in that Act.

Directions

Regulations

The Parental Orders (Human Fertilisation and Embryology) Regulations 2010

The Parental Orders (Human Fertilisation and Embryology) (Scotland) Regulations 1994

Copies of this legislation can be found at www.legislation.gov.uk

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Assessment and screening in surrogacy arrangements

14AInterpretation of mandatory requirements

Intended parents providing gametes in surrogacy arrangements must be screened in line with requirements for gamete donors.

  • 14.1

    The centre should assess all those involved in surrogacy arrangements before providing treatment, in line with the welfare of the child assessment process, outlined in guidance note 8.

Additional information for those involved in surrogacy arrangements

  • 14.2
    The centre should ensure that those involved in surrogacy arrangements have received information about legal parenthood under the HFE Act 2008 and other relevant legislation. This information should cover who may be the legal parent(s) when the child is born, as outlined in guidance note 6.
  • 14.3
    The centre should ensure that those involved in surrogacy arrangements have received information about the effect of the parenthood provisions in the HFE Act 2008 and in particular the Parental Orders provisions in the Act. These state that parental rights and obligations in respect of surrogacy arrangements may be transferred from the birth parent(s) to those who commissioned the surrogacy arrangement, as long as certain conditions are met. One of the conditions that must be met is that the gametes of one or more of the intended parents must be used, so that one partner has a genetic link to the child born. In the case of mitochondria donation, the mitochondria donor is not considered to be the biological parent (ie, because their nuclear DNA is not passed on to the child). Therefore, they cannot be an applicant for a parental order on the basis of that donation.
  • 14.4
    The centre should advise patients that surrogacy arrangements are unenforceable and that they are encouraged to seek legal advice about this and any other legal aspect of surrogacy.
  • 14.5
    The centre should satisfy itself that those involved in surrogacy arrangements have received enough information and understand the legal implications of these arrangements well enough to be able to give informed consent to treatment.
  • 14.6

    The centre should advise patients intending to travel to another country for the purpose of entering into a surrogacy arrangement that they are encouraged not to do so until they have sought legal advice about:

    a) legal parenthood of the prospective child

    b) immigration status and passport arrangements

    c) the adoption or parental orders procedures for that country, and

    d) the degree to which those procedures would be recognised under the law of the part of the United Kingdom in which the patients live.

Offer of counselling to those considering surrogacy

  • 14.7
    The centre should give all those involved in a surrogacy arrangement a suitable opportunity to receive proper counselling about the implications of the steps they are considering. The counselling requirements are outlined in guidance note 3.
  • 14.8
    The centre should encourage those involved in a surrogacy arrangement to reflect on their decisions before it obtains their consent. The centre should give them an opportunity to ask questions and receive further information, advice and guidance.

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Other legislation, professional guidelines and information

Code of Practice edition: 8