Surrogacy is a legally acceptable assisted conception method, that is supported by the UK Government. It can be a complex journey that begins with selecting the right surrogacy organisation or finding the ideal surrogate or intended parent(s) to collaborate with. From there, you’ll navigate through critical decisions, offer your surrogate support during pregnancy and delivery, and ultimately apply for a parental order to gain legal parenthood.
Here, we assess where to start with this and the legal process you are likely to encounter;
When might Surrogacy be an option?
Surrogacy offers hope to those with a malformed or absent womb, recurrent pregnancy loss, or repeated IVF failures. And it’s not just for women – male same-sex couples who are longing for a family can also explore this avenue as a potential route to parenthood.
There are two different types of surrogacy, and what your personal circumstances or challenges are will dictate which is appropriate for you.
Full surrogacy, also referred to as host or gestational surrogacy is when the baby is not genetically connected to the surrogate as the eggs used come from either the intended mother or a donor. Whereas with Partial surrogacy (or straight/ traditional surrogacy) the surrogate in host surrogacy does not provide her own egg. Instead, embryos are created in a controlled lab environment and then carefully transferred into the surrogate’s uterus.
This method is commonly used with the intended mother’s fertilised eggs and the intended father’s or donor’s sperm. Alternatively, host surrogacy can also be a viable option for same-sex male couples or when the intended mother is unable to use her own eggs. If this is the solution that is most suitable for your journey, it is highly recommended to receive treatment and support via one of the UK’s four licensed surrogacy organisations;
- Childlessness Overcome Through Surrogacy (COTS) website
- Surrogacy UK (SUK) website
- Brilliant Beginnings (BB) website
- My Surrogacy Journey website
Whilst many find a surrogate through a family member or friend, that is not always possible. These organisations can not only help by connecting surrogates with intended parents, but can also minimise the risks involved in the process by undertaking thorough background checks and providing ongoing support throughout the surrogacy journey. Unfortunately, fertility clinics are legally not able to assist in finding a surrogate for you.
Surrogacy Agreements
Before embarking on a surrogacy arrangement with a third party it’s important to take the necessary steps to build trust, understand each other’s intentions, and establish clear communication. Whilst an established surrogacy organisation will be able to guide you through the process, even without their support, the same processes should be followed to ensure a successful journey.
It’s crucial to prepare a written agreement that outlines all aspects of the arrangement. It should cover all significant details including personal information, conception and pregnancy arrangements, birth plans, potential challenges, future communication, legal implications, and expenses.
By having a well-crafted surrogacy agreement, you can navigate any changes or decisions that may arise while ensuring transparency and understanding. Such a document is not legally binding, but it will set out expectations and parameters. If any disagreements arise, however, you should still seek legal advice.
Financial Implications
You need to fully understand the financial implications of surrogacy before committing to it. Whilst it is illegal to pay another person to undertake surrogacy, there will be a number of other costs and expenses involved in the process that might make the undertaking unattainable for some couples.
The aforementioned surrogacy agreement should outline any planned expenses, payment details, and timeline. This will help with budgeting and record-keeping. When applying for a parental order, the court will consider the expenses paid to the surrogate. Keeping expenses reasonable will simplify the court process.
Although there is no specific definition of “reasonable expenses” it is generally accepted that such expenses may include loss of earnings, childcare, additional cleaning, supplements, classes, travel, maternity clothes, and recovery breaks. It’s advisable to estimate expenses at the beginning and spread payments throughout the pregnancy if necessary.
For the court application, the intended parent(s) must disclose the exact amount paid to the surrogate and the purpose of the payments. If the court finds that excessive payments were made, it will consider whether to authorise them retrospectively in the best interest of the child.
Additional costs to consider include treatment expenses, the cost of creating or updating a Will, insurance for the surrogate’s wellbeing, fees or membership costs for surrogacy agencies, and legal costs for the parental order application. While legal representation is not mandatory, it is recommended by the Human Fertilisation and Embryology Authority (HFEA) and the family court. Costs for legal advice can vary depending on the level of support desired.
The law around surrogacy
Whilst surrogacy is legal in the , there are certain restrictions that should be understood. While surrogacy arrangements are not legally enforceable, it is important to understand that advertising for a surrogate or offering yourself as a surrogate is against the law.
The Surrogacy Arrangements Act 1985 strictly prohibits these activities. Additionally, arranging or negotiating a surrogacy arrangement for commercial gain is also illegal. However, the aforementioned non-profit organisations can provide lawful assistance to both potential surrogates and intended parents.
In England and Wales, it’s important to note that the surrogate is considered the legal mother of the child unless a parental order is obtained from the court, even if the eggs and sperm used are yours or donated.
A parental order transfers the parental rights from the surrogate and her partner to the intended parents. This important process occurs after the birth and is facilitated by the family court and a court-appointed social worker, and can only be achieved with the surrogate’s full consent.
Once a parental order is granted, the surrogate will no longer have any rights or obligations to the child.
Then there is the matter of determining who the second legal parent will be at birth. This, generally, depends on individual circumstances. If the surrogate is married or in a civil partnership, her partner will automatically be the second legal parent until a parental order is obtained, unless it can be proven that her partner did not give consent to the treatment.
If the surrogate is single, the man providing the sperm will automatically be the second legal parent at birth if he wishes to be the father. However, it is possible for the surrogate to nominate a different second legal parent, such as the intended mother or non-biological father if desired. Both the intended second parent and the surrogate must give their consent before any transfer of sperm, egg, or embryo takes place.
There are numerous other complex legal issues surrounding surrogacy which make obtaining independent legal advice an absolutely crucial step, especially if you’re considering treatment overseas.
Our family law team includes specialists in the area of surrogacy, who will be able to guide you through the surrogacy process and offer you the confidential, and sympathetic support you require. Please contact us for impartial, practical advice.
