Kim Kardashian and Kanye West's third baby is here, but what are the 'rules' surrounding surrogate births?

Kim Kardashian and Kanye West have welcomed their third child via a surrogate [Photo: Getty]
Kim Kardashian and Kanye West have welcomed their third child via a surrogate [Photo: Getty]

Kim Kardashian and her husband Kanye West have welcomed a baby girl, delivered via a surrogate.

The reality TV star announced the happy news on her official website, in a post that revealed the couple’s newborn weighed a healthy seven pounds and six ounces.

“Kanye and I are happy to announce the arrival of our healthy, beautiful baby girl,” Kim wrote.

“We are incredibly grateful to our surrogate who made our dreams come true with the greatest gift one could give.”

The ‘Keeping up with the Kardashians’ star went on to say that her other two children, four-year-old North and two-year-old Saint, were “especially thrilled to welcome their baby sister.”

Kim reportedly turned to surrogacy to expand her family due to her struggle with preeclampsia and placenta accreta during both her previous pregnancies.

Despite the baby being born via surrogacy it has been reported that both Kim and Kanye were very much involved in the birth.

Previous stories had indicated that the couple had been banned from the delivery room, but TMZ claims that Kim was actually present during the birth and was the first person to have skin-to-skin contact during the birth.

It is also believed that though Kanye was in the delivery room, he was behind a curtain, coming out after the baby was born to hold his new daughter for the first time.

The publication were also told the surrogate had some contact with the baby after the delivery, but was almost immediately under the care of Kim and Kanye.

Kim Kardashian and Kanye West already have two children, North and Saint [Photo: Getty]
Kim Kardashian and Kanye West already have two children, North and Saint [Photo: Getty]

So, what are the rules regarding birth when it comes to surrogacy?

“Surrogacy laws and arrangements vary between countries and can be considerably complex,” explains Andrew Spearman, Head of Family Law and surrogacy specialist at A City Law Firm.

“For most couples who prefer the absolute certainty and protection afforded by the law, they travel abroad to countries such as the US or Canada for their surrogacy arrangements.”

“In California, (where Kim Kardashian has welcomed her third child), the surrogacy is governed by contract law and all the rights, payments and ‘rules’ during the surrogacy (for both surrogate and intended parents) are codified in this one document.”

Andrew says the contact will make provisions specifically to deal with: who is to be present at the birth (both Kim and Kanye in this case), who gets to first hold the child (Kim) and whether the surrogate mother has the opportunity at all (according to TMZ she did), parental rights generally and at what point the surrogate surrenders custody of the child, who makes decisions on life support and medical emergencies, cooperation with the courts to ensure the transfer of legal parentage is smooth and finally expenses and any elements of compensation for pain, suffering and emotional stress during the pregnancy.

He goes on to explain that in the US state of California, the intended parents, namely Kim and Kanye, will have applied for a pre-birth order for the child of the surrogate to be immediately recognised as their own. “This is all done prior to birth and so upon the live birth the intended parents take control and the surrogate has no rights to refuse without further court orders, although this is rare,” he explains.

“In the UK, we do not have any similar pre-birth orders, for various reasons, but mainly because of public policy in this area and the surrogate’s absolute right to be the legal mother of any child born to her until the Parental Order is granted by the court.”

According to Andrew there is a six week period where she cannot give her consent to the transfer of legal parenthood and this can be withdrawn at any point up to the court order. “The court cannot force the surrogate to change her mind,” he explains.

In practice, it is rare for a surrogate to withhold consent. “However, when it does happen then the consequences are catastrophic for the intended parents and their child.”

Kim Kardashian and Kanye West are shining a light on surrogacy as a parenting method [Photo: Getty]
Kim Kardashian and Kanye West are shining a light on surrogacy as a parenting method [Photo: Getty]

How do UK surrogacy rights differ from the US?

According to “surrogates are the legal mother of any child they carry, unless they sign a parental order after they give birth transferring their rights to the intended parents.”

This means that even if they’re not genetically related, the woman who gives birth is always treated as the legal mother and has the right to keep the child.

Even if a surrogacy contract has been signed with the intended parents and expenses have been paid for, the contract can’t be enforced by UK law.

When it comes to the father, the child’s legal father or ‘second parent’ is the surrogate’s husband or civil partner unless legal rights are given to someone else through a parental order or adoption, or the surrogate’s partner didn’t give their permission to their wife or partner.

“If a surrogate has no partner, or they’re unmarried and not in a civil partnership, the child will have no legal father or second parent unless the partner actively consents,” the website states.

Is Kim’s surrogate entitled to maternity leave?

She would be if she lived in the UK! If Kim and Kanye’s surrogate was based in Britain she would have the right to 52 weeks’ maternity leave, regardless of whether she keeps the baby or not.

“What a birth mother does after the child is born has no impact on her right to maternity leave,” the Government site explains.

How celebrities like Kim Kardashian are raising awareness about surrogacy as a parenting method

Kim Kardashian certainly isn’t the only celebrity to turn to surrogacy in their pursuit of parenthood. Sarah Jessica Parker, 50, had twins via a surrogate in 2009, conceived with her frozen eggs and her husband’s sperm, Elton John, 68, and his husband David Furnish, 52, have two sons via a surrogate and footballer Cristiano Ronaldo welcomed twins last year via a surrogate.

It’s not just celebrities for whom surrogacy is becoming an option. Figures from the Children and Family Court Advisory and Support Service (CAFCASS) show that record numbers of UK babies are being born to surrogate parents – 167 in 2014, up from 47 in 2007.

As Kim Kardashian continues to open up about her journey to parenthood for the third time, she will continue to shine a light on a parenting method that is giving hope to many for whom becoming parents had seemed a distant dream.

And like the arrival of the third Kardashian/West that should be celebrated.

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