Surrogacy

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On this page we provide an overview of:

• The surrogacy journey
• Surrogacy agreements
• Parental Orders
• International surrogacy
• Surrogacy disputes
• Surrogacy legal services

The Surrogacy Journey

One of the most high-profile types of assisted reproduction is that of surrogacy. The press has often latched on to high profile cases, and surrogacy is an area of law which suffers heavily from sensationalist journalism and reporting.

What is surrogacy?
Surrogacy is when someone else carries a baby for a couple who are unable to carry the baby themselves.

Common scenarios might be:-

• A family member agreeing to carry a baby for her sister who has fertility problems
• A friend of a male same-sex couple, agreeing to carry a child for that couple
• A married couple wants a child and look abroad for a surrogacy match.

There are two types of surrogacy: gestational surrogacy (where IVF is used to implant an embryo made of the intended parent’s sperm and egg) or traditional surrogacy (which uses the surrogate’s egg and the intended father or sperm donor’s sperm).

So what does the law say?
Surrogacy in the UK is legal, but not on a commercial basis. Surrogates may only receive ‘reasonable expenses’ for their efforts, and any payment of remuneration can be and has been, challenged in court. Intended parents (known as ‘commissioning couples’) must make their surrogacy arrangements on an altruistic basis, and surrogacy contracts are unenforceable.

How do I find a surrogate?
The tight legislation has led to a number of commissioning couples going abroad to seek treatment in jurisdictions in which commercial surrogacy is legal (Ukraine and the USA being key hot spots). This poses further problems for courts when the parties return.

What employment rights do I have when going through surrogacy?
Click here to learn about the various employment rights available to both surrogates and commissioning couples.

Law Reform
The law as it currently applies to surrogacy is completely obsolete and out of touch with the reality of those who take part in altruistic surrogacy arrangements. All of the major surrogacy organisations have been lobbying parliament for quite some time that change is drastically required in order to provide legal protection for surrogates, commissioning couples and most importantly the children born at the end of it all.

A huge leap occurred last year when surrogacy was listed as an area to be reformed in the Law Commission’s 13th programme of review taking place between 2017 and 2020. The Law Commission and the Scottish Law Commission have launched a joint consultation on Surrogacy which is currently taking place. We now wait with eager anticipation for the consultation to be completed.

Surrogacy Agreements

Setting up surrogacy arrangements for commercial gain is also against the law, as is drafting surrogacy agreements for commercial gain. As such, we cannot offer to draft surrogacy agreements for you, nor can any other lawyer!

There are a number of not-for-profit organisations who are able to offer these services, such as Surrogacy UK.

Parental Orders

Once a child is born through surrogacy, legally, the mother of the child is the surrogate and the father or “other parent” is her husband/wife (if she is married) or civil partner. For the commissioning couple to be able to take full legal parenthood over the child they must be granted a Parental Order through the courts (governed by the Human Fertilisation and Embryology Act 2008). To be granted an order certain conditions have to be met, which are:

1. The child was born to a surrogate using assisted reproduction (without the use of intercourse);
2. The applicants for the parental order are married, in a civil partnership or other opposite-sex or same-sex couples (although this is currently being reformed to include single applicants);
3. The genetic material of one of the intended parents has been used to create the embryo;
4. The application is made within 6 months of the date of the birth;
5. The child lives with the applicants at the time of the application and at the time when the order is made;
6. At the time of application and the time the order is made, either applicant (or both) are domiciled in a part of the UK;
7. Both applicants are at least 18 years old;
8. The surrogate and her spouse or civil partner, if there is one, have to have consented and they must give their consent at least 6 weeks after the birth (the “cooling-off period”); and
9. The court must be satisfied that no money or other benefit, other than “expenses reasonably incurred” has been paid either for the surrogacy itself or for arranging the agreement.

Many high profile cases, often involving international surrogacy, have highlighted to the general public the practical realities of such tight regulation, with many children being left in legal limbo during the Parental Order application process. Family law judges themselves have also been stuck between a rock and a hard place as they are faced with commissioning couples who may not meet one of the criteria for granting the order (for example, a commercial payment having been made abroad, or a delay in the application being made due to immigration issues) but for whom the best interests of the child dictate that the order must be made anyway. For some commissioning couples, they are left with no alternative but to apply for an adoption order for a child who they consider to be their own.

International Surrogacy

For many, going abroad to access surrogacy has become the preferred option.

Although this may be considered ‘easier’ with the differing surrogacy law, the process itself is not legally straightforward and you do need to consider your plans for re-entering the UK and ensuring that the process as a whole is as smooth as possible.

We offer a Fertility Fixed Fee Package with one of our experienced surrogacy lawyers where we will explain to you the legal links between the UK and the country your surrogacy is taking place in, the parental order process and pitfalls to watch out for on your return to the UK, such as securing British nationality for your child. We also have employment law and private client colleagues who can provide you with advice about your employment position during the process and can discuss specialist Wills with you so that your new child has protection should something happen to you before a parental order is granted.

Surrogacy Disputes

Thankfully, surrogacy disputes are rare and it is even rarer for them to end up in court.

However, if you do find yourself in a situation whereby things have gone sour, we have a large team of experienced litigators who are able to represent your interests.

Get in touch.

Surrogacy Legal Services

We offer a range of services to suit your needs when embarking on your surrogacy journey, either within the UK or abroad.

We can provide legal guidance on how to represent yourself if you choose to do that, and also provide a full parental order fixed-fee package whereby we conduct the entire case for you if you would prefer to spend your time with your new bundle of joy and let lawyers deal with the paperwork.

Our specialist private client and employment colleagues can also offer support with more specialised advice.

Get in touch for more information or to speak to one of our specialist fertility lawyers.

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