Tom Daley, Dustin Lance Black and the difference between UK and US surrogacy law

Dustin Lance Black and his husband Tom Daley are proud parents to their little boy Robbie Ray, born to a surrogate mother in California in June 2018. In an article for the Guardian and a series of podcasts recorded for Radio 5 Live (Surrogacy: A Family Frontier) Dustin explores a wide range of subjects and views surrounding surrogacy. But how does surrogacy in the US differ to the UK? Senior Associate Rebecca Eels, from Stone King’s Family & Mediation Team explains.

Surrogacy in the US

Black and Daley used a gestational or host surrogate and an egg donor. This is different to traditional surrogacy where the surrogate’s mother’s eggs are also used. Black and Daley used an American clinic to enable them to become parents, however although they were able to leave the hospital with their child and a birth certificate naming them both as parents, the law in this country is very different. Black in his article describes the absence of laws in the UK as being like “the wild west”.

Surrogacy in the UK

In the UK when a child is born to a surrogate there are no legal documents surrounding the arrangement but rather a number of statements of intent about how the arrangement will work and how they will communicate. Each surrogacy agreement is different and can include a number of aspects such as communication and future relationships with the surrogate, birth and post birth arrangements.

Although in the UK surrogacy is legal, agreements are not though enforceable and it is an offence to advertise for a surrogate or indeed advertise yourself as a potential surrogate. When the child is born in the UK unlike the US where Daley and Black where able to leave the hospital with a certificate naming them as parents, the intended parents have no legal rights at that stage.

Who are the legal parents?

The law states that the legal parentage of the child will be the mother (the woman who carried the child) and if the surrogate is married or in a civil partnership then her parent will be the second legal parent. Parentage is vested in this way regardless of whether the child is born abroad or the intended parents have a foreign birth certificate naming them as parents. The surrogate mother will still be classed as the mother even if she has no genetic link to the child (as in Daley and Black’s case)

In UK the intended parents will not be classed as the child’s legal parents until a Parental Order is made which must be applied for within 6 months of the date of birth of the child. This must be done even if you have a foreign birth certificate. Once a Parental Order is made the birth parents are no longer classed as parents and once made a new birth certificate will be reissued.

Stone King’s Family and Mediation Team is able to advise on families created through donor conception and surrogacy, as well as on co-parenting, adoption and fertility treatment.

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