The Surrogacy Act 2021

Introduction

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:

1. Regulate surrogacy arrangements in Gibraltar.
2. Establish the legal parenthood of those participating in assisted reproduction arrangements.
3. Make provision for Parental Orders to confer legal parenthood and the transfer of parental responsibility to the applicants.

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.

What is a surrogacy arrangement?

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.

How have surrogacy arrangements changed?

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.

Are the surrogacy arrangements enforceable between the parties?

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.

How is parentage determined in assisted reproduction arrangements?

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.

How is parental responsibility and legal parenthood transferred?

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 child has been carried by a woman who is not an applicant.
• At least one of the commissioning parents have provided either their eggs or sperm used to bring about the creation of the embryo.
• The surrogate mother (and her spouse or civil partner, if applicable), have given their free and unconditional consent to the making of the Parental Order, with a full understanding of its implications. However, this requirement may be dispensed by the Court in circumstances where the said person(s) cannot be found (e.g., an anonymous egg or sperm donor have been used) or are incapable of giving their consent.
• No payment has been made or received by any of the parties, other than the reasonable expenses incurred for the benefit of the surrogate mother; in other words, showing that it was not a commercial surrogacy arrangement which constitutes a criminal offence.

The commissioning parents must also be:

• Married, in a civil partnership, or two people living as partners in an enduring family relationship who are not within prohibited degrees of relationship in relation to one another (i.e., a relationship which is like a marriage or civil partnership and does not apply in cases where for example, two platonic friends or two siblings live together), in the case of an application made by two applicants; and
• Aged 18 or over.

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.

What is the procedure in applying for a Parental Order?

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:

• An application is made the by commissioning parent(s) filing the form C51 at the Supreme Court. A copy of the child’s birth certificate and proof of the genetic link between one of the commissioning parents and the child (i.e., DNA test results) must also be provided.
• The application must be served on the respondents, that is to say either the surrogate mother, or any other person deemed to be a parent (see above), any person in whose favour there is provision for child contact, or any other person with parental responsibility for the child at the date of the application.
• The matter will then be listed for a first directions hearing, where the Supreme Court will consider appropriate directions for the filing of evidence, a future listing date, and the appointment of a parental order reporter with the duty of safeguarding the interests of the child before the Court. The parental order reporter will be tasked with investigating the merits of the case and preparing a welfare report.
• If all of the conditions for the making of a Parental Order are met, the Court should make the requisite order. However, in circumstances where the application is contested by the respondent(s), directions will be made for the matter to progress to final hearing so that the Court may determine the matter. If the child is already residing with the applicant(s), with the agreement of the surrogate mother and any other parent, or the Court determines that the child should be residing with the applicant(s), and subject to the paramount consideration of the child’s welfare of the child being met, the Court may dispense with the requirement for the consent of the surrogate mother and any other parent being given.

Will the child’s birth certificate change after the making of a Parental Order?

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.

Summary

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.

How can we help?

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:

Charles Simpson, Director (charles.simpson@triay.com)
Joanna Baglietto, Associate (joanna.baglietto@triay.com)