One example from HFEA 2008 reads: “In the situation where two women attend at a clinic for treatment together to conceive a child to be brought up by them, if one woman provides the egg which is implanted in the other woman, the legal mother will be the carrying mother and the other woman the genetic mother”.
Shortcomings in the law
Among shortcomings in the law highlighted by the chapter are its failure to provide the opportunity to have three legal parents (a useful refinement for, say, two legal parents, in a civil partnership, choosing to conceive through a donor who is known to them).
The chapter on surrogacy comes with a warning that anyone contemplating a surrogacy arrangement should seek specialist advice. Nevertheless, the highly detailed guide it offers takes the reader through all kinds of thorny issues. It’s currently a criminal offence to make or negotiate a commercial surrogacy agreement in the UK. Yet commercial surrogacy arrangements made abroad are not illegal in the UK. This means that it is possible to enter into a commercial surrogacy abroad, then return to the UK, apply for a parental order, and get legal parent status. To obtain this, you would have to be able to show that any commercial exchange was for expenses reasonably incurred. The chapter chronicles the evolution of surrogacy case law, as thinking evolves on where the best interests of the child lie.
Children and same sex couples bills itself as a legal handbook. While certainly thorough enough for that, it may be more: both reader-friendly and intriguing, it’s potentially of as much interest to the intelligent layman as to the professional.
Chris McWatters, Garden Court Chambers