Surrogacy amidst the International Coronavirus Crisis: an emotional and legal quandary

1st June 2020 Family Law

Coronavirus has hit nearly every area of life, for nearly everyone, worldwide. That includes surrogacy: It is not uncommon for couples or individuals from England & Wales to travel abroad for their surrogacy arrangements. Dozens of surrogate babies are currently stranded in “lockdown” in jurisdictions away from where their families intend to raise them.

Much of the press coverage on this issue relates to the Ukraine, but the issue is not limited to that country. Intended parents might travel back and forth to their chosen jurisdiction as necessary throughout the pregnancy but will invariably attend that country to be present at the birth of their intended child. Travel restrictions, lockdown, flight prices and availability have, in many cases, disrupted that. 

Surrogate babies are amongst the most yearned for; often arriving after their intended parents have been through an emotionally challenging fertility journey. It requires particular empathy for intended parents who have been unable to travel to be with their child on their birth – and indeed their children, who must sadly wait to enjoy that loving care.

It is also sadly expected that aside from the implications of restricted travel, the COVID-19 restrictions will impact on the applications that need to be made after birth to secure the necessary transfer of parenthood.

In this country, a child’s legal mother is the woman who gives birth to him or her. That is regardless of biology or intention (and in the event the legal birth mother is married, her husband or wife will be the second legal parent). That is also the case regardless of how the law confers parenthood in the country in which the surrogacy has taken place and the child has been born – at present, there is no reciprocal recognition of different rules on who is considered a legal parent on birth.

The process by which legal parenthood can be transferred from the surrogate (and her spouse) to the intended parents is through application to the Court for a Parental Order. The coronavirus crisis sadly might create a number of issues in applying for and obtaining those orders. For example, it is a requirement that the child’s home must be with the intended parents (though there is case law which allows for a generous interpretation of what this means, which is now wider than the child having to be physically in the same household as the intended parent(s), in certain circumstances). Further, it sets out that an application for a Parental Order needs to be made within 6 months of the child’s birth, though this can be extended by the discretion of the court if there is good reason for the delay.

Aside from the emotional challenge of being unable to be with one’s baby at their birth, those rules create scope for legal difficulty. In some circumstances, families are entirely in the hands of the relevant governments as to whether or not they can travel for this purpose. There is no certainty as to how restrictions might ease or tighten over time. It is very difficult therefore to predict when surrogate babies might be home.

Some parents may choose to apply for a Parental Order as soon as possible, in the hope that their children are ‘home’ by the time the matter comes to Court. Those parents might find themselves before a Court before the children are with them, and therefore need to address the statutory requirement of  “home” to work around their physical presence there. Some parents may not feel comfortable proceeding amidst that uncertainty, which may mean they need to seek permission for the usual time limit to be extended.

The reassurance for families going through this process is that, in most cases, the Court is motivated to make a Parental Order: they do not want to see the legal relationship between intended parent and child disrupted. There is therefore a significant body of case law showing the Court’s willingness to approach the legislation creatively, and this in particular relates to applications made out of this 6 month window for reasonable circumstances. It is easily foreseeable that the current crisis would fall within that bracket. 

In fact, the 6 month time limit is often criticised as somewhat arbitrary and rarely consistent with the children’s best interests. That is probably a contributing factor to the Court’s sympathetic approach to interpreting that rule, but it remains in place now. Perhaps this might become the catalyst to change that.

It is also necessary to give pause for thought for surrogate mothers. Surrogates often care passionately about their role. It creates difficulty for surrogates to know that they continue to have legal parenthood for, and often care of, a child they didn’t intend for. The “gestational” definition of legal parenthood does have its critics but the reality is that it is unlikely to change and remains something surrogate mothers may need to navigate throughout this crisis.

We should never lose sensitivity of the fact that these are very real personal challenges, as well as legal problems. And it may be that the Court in this country can and will help parents get around those challenges when it comes to making the necessary applications. What should not be overlooked, though, is that coronavirus creates a complicating factor and it is one that requires careful thought.

Our specialist lawyers are available to help anyone who is trying to navigate a surrogacy arrangement amidst the current crisis. 

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Joe Ailion is a Solicitor located in Manchesterin our Family department

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