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Surrogacy and legal parentage: let intentionality prevail: Part 2

Date:29 MAY 2019

In the first part of this article, it was established that surrogacy law in England and Wales is in need of reform in a number of areas. Arguably, the most fundamental flaw of the current law is the fact that unlike its counterpart in Californian law, English law fails to allow the intentions of the intended parents and surrogates to shape the course of their surrogacy journey. A question then remains to be asked for the second part of this series - if intentionality is important to the functioning of surrogacy law, how can English law be reformed in order to allow intentionality to prevail?  

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Gestational Carrier Agreements

As explored in Part 1, in California, judicial decisions in surrogacy disputes turn on the intention of the parties to the arrangement – whether that intention has been expressed in writing or through action. It therefore follows that for the court to give way to, and enforce, the intentions of the parties, the same must be clearly articulated, so there can be no doubt as to what the parties to a surrogacy arrangement have agreed upon. In light of this, California Family Code §7962 was enacted which requires parties to execute a legally binding Gestational Carrier Agreement (‘GCA’) which details the rights and duties of each party from conception to birth, and the intentions of each party regarding the legal parentage of the child to be born through the surrogacy arrangement. The legislation makes it clear that a GCA must be legally executed and properly notarised before any medical treatment in preparation before the surrogacy journey has commenced. By articulating the expectations of each party in a legally binding GCA, there can be no uncertainty as to what the intentions of both the intended parents and the surrogate are.

With the formation and use of GCAs, the matter falls squarely within the contract law arena, and in circumstances where the requirements laid out in statute are present in the agreement, the contract is legally binding, enforceable and shall dictate the outcome of any dispute which may arise. The obvious benefit of the existence of such an agreement is that it makes clear the responsibilities, rights and intentions of all parties - it leaves no doubt as to the role each shall play – or indeed cease to play as the pregnancy commences, progresses and eventually comes to a conclusion at birth. Furthermore, it preserves the decision-making autonomy of each party – the intended parents have control over their personal decision to expand their family using a surrogate, and the surrogate retains a say in deciding whether or not to go through the physically demanding process of pregnancy and childbirth, and on what terms. One cannot escape the fact that for both the surrogate and intended parents, embarking upon a surrogacy journey is a big decision to make, and should only be entered into freely and with full understanding and knowledge of the resultant implications. Californian legislation reflects the importance of this by adding in further protections which state that:

“Prior to executing the written assisted reproduction agreement for gestational carriers, a surrogate and the intended parent or intended parents shall be represented by separate independent licensed attorneys of their choosing”.

This requirement ensures that the interests of both parties remain protected. As the terms of the agreement are negotiated between legal representatives, it limits the possibility that one party can wield undue power or influence over the other by including unfavourable terms within the agreement. Once the GCA has been completed and formally executed, the medical procedures and surrogacy journey can begin. The terms of the GCA remain binding upon both parties (save in rare circumstances where a repudiatory breach has occurred) and will go on to serve as the clear and unequivocal reference point for the parties and a court, should any disputes arise either during the pregnancy or post-birth.

In light of the clarity and certainty that the presence of a GCA brings to a surrogacy journey, the first major change that could be made to English law in order to give effect to the parties’ intentions, would be to introduce the use of clear and binding GCAs which are entered into after each party has received separate legal advice and assistance. As in Californian law, the agreements if properly executed, can have all the power of a legally bunding contract. With the presence of the same, there can be little room for doubt as to what the parties intended when they chose to embark upon the surrogacy process. In order for the GCA to carry sufficient weight and have a bearing on the surrogacy process, the GCA and the terms therein should ideally be legally binding on the parties in English law. However, if the legislature does not wish to take matters so far in that direction, then at the very least, the terms of a GCA must be the starting point for any judicial intervention in the event that a future dispute arises.

The existence of a formalised GCA allows the parties to unambiguously express their wishes and intentions regarding the Legal Parentage of the child to be born from the surrogacy journey. With a binding agreement in place, the law can give effect to the intended legal parentage arrangements either pre-birth or immediately upon birth – in turn, swiftly overriding legal presumptions of parentage without the requirement of court hearings or delay following birth.  Granting the intended parents the ability to immediately determine the legal parentage of their child, is the second key change that English law could make to give way to the intentionality of the parties.

A rebuttable-presumption

In both Californian and English law, there exists a presumption of parentage – notably the principle that the mother of a child is the woman who gives birth to the child. In most circumstances, this presumption will be readily applicable and mirror reality without difficulty. Section 33(1) of the Human Fertilisation and Embryology Act 2008, defines “mother” in English Law as:

“The woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child.” 

This definition and presumption of motherhood leaves no room for alternate parentage arrangements following a surrogacy journey. It is at this point that the laws of California and England diverge, for in Californian Law the presumption of mother, and indeed parenthood as a whole, is rebuttable. As a result, the parentage of a child can be defined in terms different to that initiated in statute, for the California Family Code §7610 (often referred to as the Uniform Parentage Act) states that:

“The parent and child relationship may be established as follows:
(a) Between a child and the natural parent, it may be established by proof of having given birth to the child, or under this part.” (under this part being taken to mean the alternative ways of establishing parentage as proffered in the remainder of the Family Code and further discussed below).”

Whilst it is helpful and indeed essential to have a starting point from which all other circumstances flow, it is evident that an amendment of English legislation is required which offers a rebuttal in surrogacy cases. The amendment to the legislation could start by simply inserting a prefix (or suffix) caveat to s33(1) HFEA which directs that the presumption will apply, save for circumstances in which the woman in question is acting as a surrogate. Following this, the amended legislation could then go on to detail the alternate way(s) in which legal parentage can be determined in surrogacy cases. The benefit of having a rebuttable presumption in surrogacy cases, is that it leaves room for the intention of the parties to prevail over that which the law has dictated as a matter of course. As a result, the make-up and arrangement of legal parentage can, from the outset, reflect that which all the parties to a surrogacy arrangement intend.

Not only should there be a rebuttable presumption in relation to the legal mother of a child born by surrogacy, but there is a strong argument to be made that the law should be changed in order to allow for that presumption to take effect immediately upon the birth of the child, which in turn could be facilitated through the issuing of Pre-Birth Orders.

Pre-Birth Orders

By entering into a surrogacy arrangement, the intended parents do so with the express wish to be considered as the first and only parents of the child. Indeed, as previously examined in Part 1, but for the intention and first initiating actions of the intended parents, the child would not have come to be born. In addition to this, it is widely known and accepted that surrogate mothers largely enter into surrogacy arrangements on an altruistic basis, with no intention or desire to act, or be considered as the mother or parent of the child. California law accurately reflects both of these sentiments by permitting the parties to establish their desired parentage arrangement of the child during the pregnancy.

Using the GCA as evidence of the intended and agreed upon parentage arrangements, California Family Code §7962 entitles the intended parents to bring “an action to establish the parent-child relationship between the intended parent or parents and the child… before the child’s birth”. The petition is often issued any time after the first trimester of the pregnancy, and upon receipt of the GCA and completed petition, the court issues a judgment (Pre-Birth Order) which establishes the parentage of the child in line with the arrangements set out in the GCA. There is no requirement for the parties to attend at court and the judgment is obtained swiftly as a paper exercise. California Family code §7633 then permits the pre-birth order to come into force immediately upon birth of the child, which in turn permits the intended parents to register the birth themselves and be named on their child’s birth certificate. By following this sequence of events, at no point will the surrogate be considered the mother or legal parent of the child, but rather the intended parents shall be the legally recognised parents from the outset. This outcome is a direct reflection of the parties’ intentions. Moreover, it ensures that the surrogate does not carry any of the legal responsibilities which follow the parent of a child against her express wishes and allows the intended parents to immediately exercise their rights and responsibilities as the legally recognised parents of their child.

As discussed in Part 1, in English law, intended parents often become the legal parents of a child born through surrogate by obtaining a parental order. There are, however, restrictions on the timing of when a parental order can be applied for – most notably, parental orders cannot be granted before 6 weeks have elapsed following the birth of the child; any consent given by the surrogate to waive her parental rights prior to the 6 weeks having elapsed, will not be accepted by the court as valid consent . As a result of this, for the first 6 weeks of the child’s life, the surrogate who has no desire to carry the legal responsibilities of the child, remains the legal mother, and the intended parents cannot freely and openly exercise their rights and responsibilities over their own child who they do wish to parent. The fallacy of this outcome is plain for all to see.

If English law is to allow the intentions of the parties entering into surrogacy arrangements to take centre stage within the process, then it follows that a key legislative change which needs to be considered and implemented, is the provision for intended parents to assert their preferred legal parentage arrangements through the granting of swift Pre-Birth Orders, prior to the birth of the child. The Pre-Birth Orders can then automatically take effect immediately upon birth, and the intended parents can therefore enjoy the experience of registering the child’s birth themselves and undertaking their desired role as legal parents from the start of their child’s life.

Let intentionality prevail

In order for intentionality to take centre stage in surrogacy law, it is evident that the law requires a mechanism to exist through which intentions can be unequivocally evidenced. The presence of correctly executed GCAs (either legally binding or otherwise) appears to be the answer, as it allows the intentions of the surrogate and intended parents to be made clear from the outset of the surrogacy journey. The law can then seek to go further and give effect to this clearly articulated intention by permitting the presumption of legal parentage to be rebutted in surrogacy cases, and by granting Pre-Birth Orders during the pregnancy which take effect upon birth, thus honouring the desire of the intended parents to be recognised immediately as the legal parents of their child. Although there are a number of aspects of English surrogacy law which one could argue should be reformed, seeking to make these key changes to surrogacy law, will arguably be the most foremost steps the legislature can take in order to allow intentionality to prevail.