Tom Daley’s baby news: What is the law on surrogacy for same sex couples in England?

On Valentine’s Day, British diver Tom Daley and his husband Dustin Lance Black announced their pregnancy using a surrogate mother. Daley has commented how far behind the law is in England on surrogacy in comparison with some other countries. He also noted how much research he and his husband have had to carry out into what is and is not possible legally in England for same sex couples.

So what is surrogacy? Surrogacy is an arrangement in which a woman – the surrogate mother – carries and gives birth to a child for another couple. The surrogacy arrangement is made before the surrogate mother begins to carry the baby and it is made with a view to the parental responsibility for that baby being met by another person, or persons.

At the other end of the spectrum to Daley and his husband, is perhaps Mr Mitsutoki Shigeta who has also been in the news. At the age of 28 and with some wealth as an IT entrepreneur living in Japan, he is known to have fathered at least 16 babies via surrogates in Thailand. This “baby factory case” has led to Thailand now banning commercial surrogacy for foreigners but he has been awarded “sole parent” rights and all of his children will move to live in Japan. Mr Shigeta was investigated by Interpol for human trafficking but the Judge was satisfied all surrogates had relinquished their parental rights by way of the surrogacy agreements entered into commercially. He was also satisfied that Mr Shigeta simply wanted a large family and had the financial means to support them.

As Tom Daley has discovered, it is an offence in English law to carry out commercial surrogacy arrangements, although many other countries have laws allowing this practice. The payment of reasonable expenses in connection with bearing a child are allowed, although the surrogate mother cannot enforce payment.

When the baby is born, the couple entering into the arrangement with the surrogate mother then need to apply for a parental order. However, if neither of the couple are genetically related to the baby, they must either adopt the child or consider a Child Arrangements Order.

If you’d like to discuss surrogacy or another area of Family Law with a member of our team, please call 0113 201 4902 or email family.law@emsleys.co.uk.