The most recent figures available demonstrate a significant rise in the number of parents opting for surrogacy in England and Wales over the past decade. Parental orders, which legally transfer parentage from the surrogate, have nearly quadrupled from 117 in 2011 to 413 in 2020.
But whilst the process has been sensationalised over the years by soap operas and media tales of celebrity surrogate births, the process itself is essentially standardised to ensure clarity and security for all those involved.
Here we take a look at the steps involved;
1. Understanding the Types of Surrogacy
There are two distinct types of surrogacy arrangements: Traditional/ Straight Surrogacy and Gestational/Host Surrogacy. In the Traditional/ Straight Surrogacy, the surrogate becomes the biological parent using her own egg and the intended father’s sperm. On the other hand, in Gestational/Host Surrogacy, the surrogate has no genetic connection to the child. The child can be conceived using the intended parents’ egg and sperm or with the help of a donor’s egg or sperm.
Within the fertility market, gestational surrogacy is far more prevalent, however, it should be understood that the cost of gestational surrogacy is more than that of traditional surrogacy because it involves more non-invasive procedures and doctor visits.
2. Choosing a Clinic
When it comes to surrogate children, artificial conception is usually required. Extensive research should be conducted to find clinics that meet your specific needs and specialise in surrogacy. It is recommended to personally meet the doctors and nurses involved in your treatment to feel more confident and at ease with your chosen clinic.
There are four non-profit surrogacy organisations in the UK that can help to facilitate surrogacy –Brilliant Beginnings, COTS, My Surrogacy Journey, and Surrogacy UK . Each operate differently, so thorough research is necessary to understand their respective processes, and whether their ethos or methods mirror your needs.
3. Finding a Surrogate
Finding a surrogate in the UK can be challenging due to legal restrictions. It is currently illegal to advertise or promote oneself as a surrogate, or to negotiate or plan a surrogacy agreement for profit. These actions are expressly forbidden by the Surrogacy Arrangements Act of 1985.
Whilst the aforementioned clinics can assist with making introductions or matching potential partners, another option worth considering is asking a trusted friend or family member to become your surrogate. While this may be a difficult conversation to have, it’s important not to make such enormous life changes without discussing all the options with those you’re closest to. Many intended parents have found willing support in their closest circles by being honest and reaching out for help.
There are several closed social media or internet directories where it is possible to search for potential surrogates, but be mindful that sourcing a surrogate independently may offer less structure, assistance, or screening. Vetting a potential partner is paramount and be sure to seek legal advice before proceeding.
Embarking on a surrogacy journey comes with its fair share of risks, particularly if you are entering into an agreement with someone you previously didn’t know. The surrogate may have a change of heart about handing over the baby to the intended parents. Conversely, the intended parents may have a change of heart about assuming legal parenthood. Conflicting opinions on care or mismatched expectations for future contact are also possible stumbling blocks.
Prioritise getting to know one another before committing to a surrogacy arrangement in order to minimise the associated risks:
• Check to make sure everyone agrees to the arrangement voluntarily and fully.
• Give all parties concerned enough time to build trust.
• Have open discussions about potential outcomes and put your intentions down in a written contract.
You can get assistance in this process from UK surrogacy agencies.
4. Create a Surrogacy Agreement
Surrogacy agreements in England and Wales are not legally binding, but they serve as important documents for recording the intentions of all parties involved. While lawyers cannot prepare these agreements, clinics often require them, and they may be referenced in legal proceedings.
A surrogacy agreement outlines how the arrangement will work and the commitment each party is making to each other before the surrogacy journey begins. Major surrogacy organisations stress the importance of having a written agreement to facilitate clear communication and mutual understanding between the intended parents and surrogate.
To ensure confidence in the agreement, it is recommended that all parties thoroughly discuss and address any disagreements. Once everyone is satisfied with the agreement, it should be written up, signed, and kept as a reference point for any changes to the plan during the journey.
The key elements to include will vary depending on each unique arrangement. They may include details of the intended parents and surrogate (as well as her partner/spouse), marital status at the time of conception, personal arrangements before and during conception, support during pregnancy, birth and post-birth, future contact or relationship with the child, legal implications, expense and cost considerations.
5. Embryo Creation
Embryos in surrogacy are made using eggs and sperm from the intended parents or donors. These embryos are then transferred to the gestational carrier either through a fresh IVF cycle or a frozen embryo transfer.
To increase your chances of success, it’s recommended to have more than one embryo available. If the initial transfer fails, you will need to undergo another IVF cycle to create additional embryos.
For a parental order to be granted, at least one of the intended parents must be biologically related to the child. This requirement is crucial. Donor eggs or sperm can be utilised, as long as one of the intended parents’ gametes are also involved in creating the embryo.
6. Obtain Legal Advice
All reputable clinics will request that both intended parents and surrogates to obtain legal counsel before entering into an agreement so there is no risk of overlooking the potential legislative challenges or risks.
Although a lawyer will not be able to draw up a surrogacy agreement between the two parties, they can offer clear guidance on the legal undertakings that must be respected to make surrogacy lawful.
In England and Wales, the surrogate and her spouse are legally recognised as the child’s parents at birth, even if there is no biological connection. It’s essential to grasp this and meet all necessary criteria to obtain a parental order, which will establish the intended parents as the legal parents of the child.
7. Treatment and Pregnancy
It’s a big decision to start along the surrogacy path. Treatment should only begin once you and your surrogate are emotionally ready, under the guidance of counselling, medical advice, and legal support.
Being a surrogate is a lengthy procedure, so it’s critical to set reasonable expectations and allow enough time for each step. A surrogacy journey typically lasts 18 to 36 months, although it could go longer depending on how your particular journey plays out.
The intended parent’s involvement in the surrogacy process is a joint decision, and it is essential to have open discussions about the level of involvement.
Intended Parents should make an effort to actively participate in the pregnancy. Celebrating important milestones such as scans, classes or gender reveals will help to emotionally prepare them for their new roles as parents.
Throughout any subsequent pregnancy, it is the responsibility of the intended parents to cover reasonable expenses incurred by the surrogate, which may include maternity clothes, travel expenses, and any loss of earnings she may experience. The exact reimbursement amount can vary, but Surrogacy UK estimates that it’s generally between £10,000 and £15,000. However, the specific circumstances of your surrogacy arrangement may warrant additional expenses (eg, should the pregnancy result in multiples).
8. Parental Orders
After the baby is born, the intended parents become the main caregivers. However, once the baby reaches six weeks old, an application for a parental order will need to be made to establish legal parental status. This is necessary even if the baby is born in another country and the intended parents are listed on the birth certificate.
Applying for a parental order involves the family court and a court-appointed social worker. It can only proceed with the surrogate’s consent. This order establishes the legal position of parenthood. If all the necessary steps have been followed, the surrogate will relinquish all rights and obligations to the child. The legal parenthood will then transfer from the surrogate and their spouse to the intended parents.
A new birth certificate will be issued, acknowledging the true legal parenthood. This will mark the end of the surrogacy journey.
No matter the stage in your surrogacy journey, whether you’re searching for the right surrogate, your surrogate is already pregnant, your surrogate has given birth, or you are the surrogate, we will break down the legal issues one step at a time in a language you understand. Contact our family law team to speak to one of our expert solicitors about surrogacy now.
