The Surrogacy Act 2021

March 12, 2021

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The Surrogacy Act 2021 (the “Act”) came into force on 9th February 2021, following its publication in the Gibraltar Gazette.

This Bill provides the basis for those unable to conceive to engage in a non-commercial, altruistic surrogacy arrangement and seek legal parentage of the children by applying for a Parental Order. Such an application will be subject to the legal safeguards in place for the gestational mother.  The Government is confident that by mirroring the approach taken in the United Kingdom, in this area, Gibraltar is modernising the legal position of the family unit and removing the potential risks that may arise in the absence of effective surrogacy legislation in Gibraltar.

The Bill is divided into three parts. Part 1 of the Bill establishes a prohibition on commercial surrogacy arrangements and the advertising of such arrangements, which will become a criminal offence. Part 2 of the Bill deals with issues of legal parenthood, such as the default position in law that the child born is the child of the surrogate mother. This Part also deals with the legal status of those participating in assisted reproduction arrangements, and establishes the legal parenthood of the husband, wife or civil partner (as the case may be) if the placing in a woman of embryos or of sperm and eggs, or the woman’s artificial insemination took place when the couple were married or in a civil partnership. Part 3 of the Bill details the procedure to transfer full legal parentage to the commissioning parents by way of a parental order issued by the Supreme Court of Gibraltar. Under the Bill, parental order applications are to be made within 6 months of the birth of the child, however provision is made for children who have been born prior to the coming into force of the Act so that a further 6-month period is permitted for the submission of a parental order application in those cases. 

The legislation further incorporates the recent changes to the law in the United Kingdom, which now permits a single individual to apply for a Parental Order, whereas, previously, this was limited to two joint intended parents only.

A key change in this Bill from the one published in 2019 is that the provisions of Part 2, which establish the legal parenthood of the other parent, are given retrospective effect to apply to children born after 1 January 2021. This means that if the mother was in a marriage or civil partnership at the time of the placing in her of embryos or of sperm and eggs, or her artificial insemination, her husband (if his sperm was not used for the creation of the embryo), wife or civil partner (as the case may be) will be recognised as the legal parent of the child. A person who is treated as a parent under this Part shall be treated in law as the parent for all purposes.

The Government is attuned to the potential complexities and difficulties that may arise when participating in a surrogacy arrangement for surrogates and the intended parents.  As a result, the Government will supplement this legislation with a clear and simple guidance document to ensure those who will benefit from the change in law, understand the risks and processes involved.

Commenting on the new Bill, the Minister for Justice, Equality, Health and Care, the Hon. Samantha Sacramento, MP, said: “Though this new Bill has been presented later than we would all have liked, I am very pleased that it can be brought before Parliament. It is important for Gibraltar to have a legal framework that aids residents that are unable to conceive. This legislation will enable children born to surrogate mothers to be legally recognised as the children of their intended parents, with all the legal protection this caries. It is important for a modern legal framework to reflect modern realities. This Bill certainly does that and is another example of steps taken by this Government in creating a more modern, inclusive society.

“A lot of work has gone into the preparation of this draft piece of legislation recently, particularly by the Government’s legal team working together with the Ministry for Equality and in consultation with the key stakeholder departments to advance preparations. I wish to thank all those involved in the progress of this important milestone for our community.”