Camilla Lovell-Hoare examines the complexities of surrogacy
The profile of surrogacy has been raised in recent months by virtue of celebrities such as Nicole Kidman and Elton John who have had children by surrogate mothers. However, such stories fail to reveal the emotional and legal complexities surrounding surrogacy, in particular the issues faced by prospective parents who may enter into surrogacy agreements overseas, which can be a tempting option if they are unable to find a surrogate in the UK.
Parental responsibility
One of the main issues encountered by couples is who actually has parental responsibility of the child, as under domestic law the commissioning couple are not automatically the legal parents of the child.
The main legislation governing surrogacy is the Surrogacy Arrangements Act 1985 (SAA 1985), the Human Fertilisation and Embryology Act 2008 (HFEA 2008), the Human Fertilisation and Embryology (Parental Orders) Regulations 2010 (SI 2010/985) (the 2010 Regs) and the Adoption and Children Act 2002 (ACA 2002).
Section 33(1) of HFEA 2008 defines the “mother” of the child as the “woman who is carrying or has carried a child as
