On Friday 5th February 2021, the Surrogacy Bill 2021 was passed by Parliament. The Surrogacy Act 2021 (the “Act”) came into force on 9th February 2021, following its publication in the Gibraltar Gazette.
The objective of the Act is to:
This article considers the main changes in law following the Act coming into force and provides an overview of the procedure involved in making an application for a Parental Order.
Surrogacy involves an arrangement whereby a surrogate mother agrees to carry a child with a view to the said child being handed over to, and parental responsibility being met by another person or persons (the “commissioning parent(s)”). The arrangement is made between the parties concerned before a surrogate mother agrees to carry the child in question.
A surrogate mother may carry a child by the placing in her of an embryo, an egg in the process of fertilisation, or sperm and eggs, or as a result of artificial insemination.
Part 1 of the Act provides a legislative framework for non-commercial, altruistic surrogacy arrangements in Gibraltar, where the surrogate mother does not receive payment for carrying the child.
Surrogacy arrangements on a commercial basis are prohibited and are made a criminal offence under the Act, to include advertising of this nature. However, a surrogacy arrangement can cover a surrogate mother’s reasonable expenses incurred during the arrangement. Such expenses will be considered by the Court when determining an application for a Parental Order.
In common with other arrangements, the intended parents and the surrogate may decide or wish to record how they want the surrogacy arrangement to work by entering into a surrogacy agreement. However, if the parties do enter a surrogacy arrangement then they should note that such arrangements are not enforceable under Gibraltar law even if the parties have signed a document with the surrogate mother and have paid her reasonable expenses.
Part 2 of the Act establishes the legal framework for those participating in assisted reproduction arrangements in relation to children born on or after 1st January 2021.
The Act provides that the legal mother of a child is the woman who has carried the child, irrespective of whether she is genetically related to the child.
If a woman is married or in a civil partnership at the time in which she underwent treatment to carry a child, the woman’s spouse or civil partner will be presumed to be the second parent of the child. However, there is an exception in circumstances where the woman’s spouse or civil partner did not consent to the treatment undertaken by the woman to carry the child.
In the case of same-sex female couples who are married or are in a civil partnership, where one party has carried a child, there is no need for the parties to then proceed to make a joint application for an adoption as was previously the case, prior to the Act coming into force.
If the surrogate mother is unmarried or not in a civil partnership, the commissioning father will be considered to be the legal father of the surrogate child, in circumstances where he is also the biological father (i.e., his sperm has been used to bring about the creation of the embryo).
It is important to note that the above definitions apply irrespective of whether the assisted reproduction arrangements have taken place in Gibraltar or elsewhere.
Part 3 of the Act makes provision for Parental Orders, which confer legal parenthood and the transfer of parental responsibility to the applicant(s).
An application for a Parental Order can be made either by one or two applicants. For the commissioning parent(s) to extinguish the status of the surrogate mother (and her spouse or civil partner, if applicable) and to obtain parental responsibility and legal parenthood over a surrogate child, an application for a Parental Order must be made before the Supreme Court of Gibraltar. The applicants must satisfy the Court that:
The commissioning parents must also be:
Further, the child’s home must be with the applicants, whereby at least one of the applicants must be domiciled in Gibraltar. The Act does not contain a definition of what partners in an enduring family relationship means.
An application for a Parental Order must be made to the Supreme Court between 6 weeks to 6 months of the surrogate child’s date of birth. By way of a transitional provision, the 6-month period begins to run as of the date in which the Act came into force, in the case of surrogate children born before such time.
The Surrogacy (Parental Order) Rules 2021 sets out the procedure concerning applications for a Parental Order. In summary:
The Surrogacy (Consequential Amendments) Regulations 2021 give further effect to the Act, by amending the relevant forms for the purposes of birth certificates which now includes the term ‘father/parent’.
The Act also provides for specific amendments to the Births and Deaths Registration Act and Births and Deaths Registration Rules, with the intention that the child in question be re-issued with a new birth certificate, stating the names of the applicant(s) to the Parental Order.
In summary, altruistic surrogacy is now legal in Gibraltar but if you wish to enter into a surrogacy agreement, either in your own right, or jointly if you are married, in a civil partnership, or cohabiting in an enduring family relationship, then it remains the case that it cannot be enforced by the law.
If you (and/or your spouse, civil partner, or partner) decide to use a surrogate mother, then the surrogate mother will be the child’s legal parent at birth. If the surrogate mother is married or in a civil partnership, then her spouse or her civil partner will be the child’s second parent at birth.
Given the Act, legal parenthood can be transferred by the making of a Parental Order by the Court by application after the child is born within the prescribed timeframe, but if there is any disagreement with the surrogate mother and/or second parent about who the legal parents should be, then the Court will need to determine the issue basing its decision on the best interests of the child concerned.
If neither you nor your spouse or civil partner or cohabitee are genetically related to the child (i.e., the egg or sperm donor) then the only way you can become the child’s legal parent and obtain parental responsibly is by application for adoption, as distinct from seeking a Parental Order under the Act.
Triay Lawyers have a dedicated and specialised Family team who are experienced in a wide variety of areas of family law.
If you have any questions and wish to find out more about surrogacy, adoption, making an application for a Parental Order or any other family law related matter, please do not hesitate to contact us:
This document has been issued on the 15th Mar 2021 by Triay Lawyers Limited, trading as Triay Lawyers, a Gibraltar private company limited by shares with registered office at 28 Irish Town, Gibraltar, GX11 1AA and with incorporation number 112599. The information in this document is for general information purposes only and does not constitute professional advice, legal or otherwise and does not intend to be comprehensive. Triay Lawyers does not accept responsibility for any loss that may arise from accessing or relying upon the information contained in this document.
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