Surrogacy arrangements and egg freezing are becoming increasingly commonplace with celebrities such as Kim Kardashian West and Kanye West, Andy Cohen, and Elton John speaking openly about their experiences. Yet despite the increasing number of children born via surrogate, this path to parenthood is far from simple. With many UHNWs travelling to California to achieve their parenthood goals, Citywealth’s April French Furnell spoke to advisors both sides of the pond for their top tips.
Always take advice as early as possible
Seeking professional advice as early as possible can make all the difference.
“Ideally, you should take advice before choosing a clinic or jurisdiction, and before identifying a surrogate”, said Caroline Holley, a family law partner at Farrer & Co. She illustrates with an example: “If you choose a surrogate in California and want to bring the child back to the UK, you would be well advised to choose a surrogate who is not married and for the father to be the biological father. This can make a substantial difference to bringing the baby back to the UK for immigration purposes and to arrange the parental order. Whereas choosing a married surrogate can make the situation much more complex”.
Is the child yours? Adoption may be legally required
There’s also a myriad of estate planning issues that can arise. As Joshua Rubenstein, national chair of Katten’s private wealth practice explained, “When families are considering extending their family in this way, there can be issues around whether the child is considered ‘legitimate’ for the purposes of their estate planning. It could be as simple as ensuring the child is adopted, or it might be that the structuring needs to be amended to ensure the child will qualify. Not to mention, whether the child needs to renounce its US citizenship following their 18th birthday (and before they turn 18 and 6 months) to avoid being liable for US taxes”. The key is to consider these matters as early on as possible.
Rich-kids of a different kind
Having the right team of advisors in place from the beginning, can ensure certain obstacles are avoided from the outset. But it doesn’t come cheap. From selecting a surrogacy agency, to the surrogacy clinic and maternity hospital, to legal advisors in California and in your home jurisdiction, as well as immigration advisors, estate planning lawyers; it takes a dedicated team. On average, the cost ranges from $100,000 to $150,000
California ranks top choice
For UHNWs, California is the jurisdiction of choice. “In California, it’s possible to obtain a pre-birth Order, meaning that intended parents are recognized as a child’s legal parent in that country prior to birth”, explained Emma Willing, legal director in the family team at Mishcon de Reya.
UK laws requires a Parental Order
For those UK-based, it’s important to know: UK law does not permit the enforcement of surrogacy agreements. Therefore, “If a surrogate mother enters into a surrogacy agreement with intended parents, all parties are reliant on goodwill in honouring the agreement”, explained Emma. “The surrogate mother will automatically be the child's legal mother at birth, regardless of whether or not the surrogate mother has any genetic link to the child. If the surrogate mother is married or in a civil partnership, her husband, wife or civil partner will automatically be the child's second legal parent.”
“In order for intended parents to become the legal parents to a child born via a surrogacy arrangement, it is necessary for them to apply for a Parental Order. There are various conditions which must be met for intended parents to obtain a Parental Order, including that the surrogate mother (and her husband, wife or civil partner) must give consent to such an Order being made”, she added. As a result, those with the means often travel abroad to California where surrogacy laws are less restrictive than the UK.
However, travelling abroad brings with it its own complications.
While in California the commissioning parents will be the legal parents, they still need to apply for a parental order on arriving back in the UK.
Not consulting UK lawyers first - if British - a common mistake
Applying for a parental order in the UK is far from simple. There is a list of criteria which must all be met which can create barriers for families choosing surrogacy.
“The issues that we see time and time again are clients who fail to take proper advice in England before embarking on the surrogacy process. This can be particularly damaging as the process is time sensitive, parents need to apply for parental orders for the baby within six months of the birth and the baby will need to be in the UK at the time, which is often overlooked”, said Elizabeth Carson, family partner and Hazar El-Chamaa, immigration partner at Pennington Manches Cooper.
Their advice to commissioning parents is to consider the following: “multiple jurisdictions, where are they domiciled, what their connection is to the UK and the implications this can have on bringing the baby to the UK, obtaining a parental order and also on their tax and other important financial considerations.”
In recent years, there has been a ‘chipping away’ at some of the criteria to ensure a parental order can be made where it is plainly in the child’s interests for that to happen, explained Jo-Anna Jellings, an associate at JMW Solicitors. For example, “the ability of single parents to use surrogacy as a route to parenthood, and the ability of the court to make such orders outside of the specified time limit, as well as for parents who are no longer in a relationship – all of which used to be a bar to having a parental order”, she added. Along with her team, she was recently involved in a case which marks the first known case of the court being willing to make an order in favour of a living Intended Parent who had not spent any time with the child, using the widest possible definition of the “has a home with” requirement to enable that to happen.
Immigration is an important part of surrogacy
For those who have already embarked on the process without taking advice, Elizabeth and Hazar provide reassurance: “Regardless of what stage they are at in the process, we are able to assist clients even if they have ignored the considerations above, to ensure that the baby has legal status to live in the UK and can settle here happily with their parents”.
Understanding what can and cannot be done is vital. At present in the UK, there is an arbitrary 10-year storage limit for eggs frozen for non-medical reasons.
“It was set before the introduction of vitrification, when the effects of long-term storage of frozen eggs and embryos were unknown. But with current knowledge about the safety and efficacy of vitrification, this limit is now outdated, and it is vital that it is extended if the full benefits of egg freezing are to be realised. The unintended consequence of the current limit is an unnecessary time pressure on women”, explained Professor Geeta Nargund, founder and medical director of CREATE Fertility.
The law is not logical
Change might be on the horizon. “The Government is currently reconsidering the ten-year storage limit on eggs, sperm and embryos frozen for non-medical purposes. I am delighted the Government has acknowledged the need to extend the limit and launched a public consultation”, added Professor Nargund.
However pending changes in the law, the best way to prepare is to undertake the most amount of research possible, and to understand the law – what can and cannot be done, said Jo-Anna. “The biggest issue people struggle with is that intention is not a determinative factor in how the law is applied and it is important to know that the law may apply in a way very different to what you expect or intend – don’t assume it follows intuition”, she added.
Life after death - USA
In the US, an emerging area is the use of genetic material following the death of a partner, explained Joshua. “Increasingly, we are coming across situations where typically a woman is wanting to use her late husband’s genetic material. This is permissible in all the states of the US, however for the child to have inheritance rights, the child must be born within a reasonable period – and this varies from state to state. Not only can this slow down inheritance for other beneficiaries, but it also raises questions in estate planning. Lawyers must ask: do you have any genetic material in a cryo-bank, where are the contracts with the lab? What happens on your death? It’s a contract right, so for the genetic material to be used by someone, the contract with the lab must clearly state so”.
Keep eggs and embryos’
A final piece of advice for UK women is to freeze eggs as well as embryos, according to Caroline. “A common area for disputes is where a couple who have frozen embryos later split, and one wants to use the embryo and the other withdraws consent. In the UK, if one party withdraws consent the embryo will be destroyed 12 months later. This can be devastating for some women, particularly if they are too old to restart the process of egg collection”. A workaround is to consider different jurisdictions for freezing and storing your eggs and embryos where the courts will hear arguments on the issues.
And if all that isn’t complicated enough, coronavirus has created further challenges in the past few months. Sarah Williams, head of surrogacy, adoption, fertility and modern family at the law firm Payne Hicks Beach, explained, “Previously commissioning parents have been able to arrive the weekend before the birth and travelled back to the UK soon afterwards, but that isn’t possible in this climate. They need to consider any quarantine time on either side of their travels and bear in mind the possibility of California being in lock down. It could be that they need to plan to be in California for weeks to months, rather than days. Moreover, the latest information is that the ability to get an expedited same-day passport for the child is on hold, so commissioning parents are relying on obtaining emergency passports from the British Consulate to be able to bring the child home”.
“All of this shouldn’t prevent people from entering into US surrogacy agreements, but they certainly need to be on top of both family law and immigration matters in both jurisdictions”, she concluded.
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