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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High Court judgment demonstrates usefulness of section 423 of the Insolvency Act 1986 in Schedule 1 claims (Re P (A Child) (Financial Provision))

Family analysis: In this Schedule 1 case the mother received, for her son’s benefit: a housing fund of nearly £1m (the property to be held on trust); child maintenance (including ‘HECSA’/carer’s allowance) until completion of his first degree; and lump sums in respect of his capital needs and her own substantial liabilities (chiefly relating to her unpaid legal fees). The father (whose resources could be measured in the ‘tens of millions of pounds’) had sought to prejudice the mother’s claims via transferring his valuable shares to family members, who then transferred the same into a trust structure (settled under Czech law). A further onwards transfer was then made of the trust’s assets into a Liechtenstein foundation. Inferences were drawn by the court in respect of the level of the father’s wealth, and specifically as to the value of the transferred shares. Detailed findings were made against him in respect of the identified transactions, which had been the focus of the mother’s section 423 application. Although a section 423(2) order was not actually made, the application was adjourned pending the father’s compliance with the award, with security in the sum of £600,000 also ordered, alongside a continuation of the freezing orders made earlier in the proceedings. David Wilkinson, solicitor at Slater Heelis, considers the issues.

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