Surrogacy

A surrogacy arrangement is the practice whereby a woman carries a child for another person with the intention that the child should be handed over at birth to the commissioning couple or party and raised as theirs. The key provisions for such arrangements are contained in the:

  1. Surrogacy Arrangements Act 1985 (SAA 1985)

  2. Human Fertilisation and Embryology Act 2008 (HFEA 2008)

  3. Human Fertilisation and Embryology (Parental Orders) Regulations 2010, SI 2010/985 (SI 2010/985), revoked by the Human Fertilisation and Embryology (Parental Orders) Regulations 2018, SI 2018/1412 (SI 2018/1412), and

  4. Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018, SI 2018/1413 (SI 2018/1413)

The Law Commission consultation paper on surrogacy reform, ‘Building families through surrogacy: a new law’, made provisional proposals to improve surrogacy laws to better support the child, surrogates and intended parents. See: Surrogacy—general principles—Law Commission consultation.

Surrogacy—general principles

There are different types of surrogacy: total, gestational, and partial. See: Definitions and types of surrogacy.

SAA 1985 provides that in determining whether an arrangement is a surrogacy arrangement

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Monumental Supreme Court decision on matrimonialisation and sharing principle (Standish v Standish)

Family analysis: The Supreme Court’s much-anticipated judgment confirms unequivocally that the sharing principle does not apply to non-matrimonial property. Sharing of matrimonial property will usually be 50:50, though there may be a departure from equal division where justified. Non-matrimonial property typically has either a pre-marital origin, or, where it is received during the currency of the marriage, an external source (eg an inheritance). Title to an asset is expressly not determinative as to whether that asset is or is not matrimonial. Though non-matrimonial property may become matrimonial (ie ‘matrimonialisation’) this will depend on how the parties have been dealing with the asset and whether, over time, they have been treating that asset as shared between them. The concept of matrimonialisation is to be applied neither ‘widely’ nor ‘narrowly’ (contrary to what the Court of Appeal had held)—again, the enquiry should focus on how the parties have dealt with the asset. Where an asset is transferred from one spouse to another with the intention to save tax (as had occurred in the case), this will not normally show that the asset is being treated as shared. The Supreme Court ultimately upheld the decision to dismiss the wife’s appeal, though it did not wholly agree with the Court of Appeal’s reasoning. Pursuant to that decision (made on the sharing basis) the wife would be provided with circa £25m of the total assets figure of circa £132.6m, being half of the matrimonial assets figure of £50.48m. David Wilkinson, solicitor at Slater Heelis, considers the judgment.

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