by Kathryn Cassells (@privatefamilylawyer)
Kathryn is an Associate Solicitor at Vaitilingam Kay, specialising in private family law work and with extensive experience in domestic and international surrogacy. Surrogacy in the UK is legal as long as it remains altruistic; that is, surrogates cannot be paid fees. Furthermore, arrangements of surrogacy in the UK are not enforceable by law. This can make it tricky for intended parents. Read on for everything you need to know from a family lawyer.
Whilst celebrity surrogacy tends to grab the headlines, surrogacy is not just reserved for the rich and famous. As a private family lawyer, I have seen first-hand that surrogacy is becoming an increasingly popular route to motherhood for women with medical conditions that make it impossible or dangerous for them to get pregnant or to give birth. It’s also a popular route to parenthood for same sex male couples, as it enables one of the fathers to have a genetic link to their child.
However, surrogacy is not the most straightforward of routes and for many couples it’s often a journey taken after years of trying to conceive naturally and/or through IVF.
There’s a lot to think about from a practical and legal perspective.
Practicalities of Surrogacy in the UK:
- What type of surrogacy?
There are two types of surrogacy.
Full surrogacy involves the egg of either the intended mother or a donor being fertilised with the sperm of the intended father before being transferred to the surrogate mother. This is often the preferred route when the intended mother cannot carry a child, but still has eggs or where the intended parents would prefer for the surrogate mother to carry their child but not to be genetically related to the child.
The other option is partial surrogacy, which is where the egg of the surrogate mother is fertilised with the sperm of the intended father.
Whatever route, it’s best to have the fertility treatment in a licenced treatment centre.
- How to find a surrogate in the UK?
One of the biggest challenges facing intended parents is finding a surrogate. Whilst surrogacy in the UK is legal, it is also purely altruistic which means that commercial (for profit) surrogacy arrangements are not permitted.
So, a surrogate cannot advertise, and intended parents cannot advertise that they want a surrogate. For some couples this is one of the most difficult hurdles to overcome and it can take a really long time to find a surrogate.
Thankfully, there are several organisations who can help intended parents and surrogates find each other, including Surrogacy UK, Brilliant Beginnings, My Surrogacy Journey, and Childlessness Overcome Through Surrogacy.
- Should I look for a surrogate overseas?
Given the difficulties with finding altruistic surrogates in the UK, some couples explore international surrogacy. Surrogacy is only legal in a few countries and each country will have its own legal framework. Some of the most popular destinations for international surrogacy are the USA, Canada and, until recently, Ukraine. Thought needs to be given to how to get the child back home to the UK after the birth. The past few years have highlighted how even the most carefully planned surrogacy arrangements can be frustrated by circumstances out of the intended parents and surrogate’s control. The pandemic made international travel incredibly difficult. There are now utterly heart-breaking stories from Ukraine.
International surrogacy can open up yet more complexities and couples need to take legal advice (on family law and immigration law) both in the UK and in the country they are considering before embarking on an international surrogacy arrangement.
Legalities of Surrogacy in the UK
- There’s no binding contract in the UK
A surrogacy agreement is not enforceable under UK law. The agreement cannot be drawn up by a lawyer, even if all the involved parties are taking legal advice.
A surrogacy agreement should still be negotiated though, as it will set out all the practical arrangements and expectations throughout the surrogacy journey, including payments for expenses, who may attend scans and other medical appointments, the level of contact throughout the pregnancy, and the arrangements for the birth and handing over the child.
Ultimately, all parties involved have to trust each other enough to honour the agreement once the child arrives. Disputes over parenthood after birth are rare, but if they do arise then the family court will make a decision based on the child’s best interests.
- Expenses only
As touched on above, surrogacy in the UK is purely altruistic and surrogates cannot be paid anything beyond their reasonable expenses. The expenses usually cover things like travel costs to medical appointments; maternity clothes; any additional food costs related to the pregnancy; life insurance payment; and childcare costs (if the surrogate already has children). It is estimated that surrogates in the UK typically receive between £10,000 to £15,000 in expenses. The level of expenses should be detailed in the surrogacy agreement, and a careful note kept of the expenses met. The transactions should be clearly marked in the accounts and transfers, as they will need to be approved. The intended parents would also need to meet the cost of the medical treatments for the child to be conceived. These are on top of the expenses.
Different rules apply to expenses payable to surrogates overseas, and this should be clarified when taking advice in that country.
- The child’s legal parents
A surrogate birth mother will be the child’s legal mother at birth under English law. And, if the surrogate is married, her husband will be treated as the child’s legal father even if he is not the biological father.
It is absolutely crucial for intended parents to apply to the family court for a parental order, regardless of whether the child has been born following a domestic or international surrogacy arrangement.
The parental order transfers legal parenthood from the surrogate birth mother to the intended parents. Without the parental order, one/both of the intended parents may not be treated as the child’s legal parent in the UK.
This is something which can be overlooked particularly following an international surrogacy agreement where the country in which the child has been born issues a birth certificate with the intended parents’ names on it and not the surrogate’s name or where an order is made in an overseas court.
Without the parental order, the intended parents can find themselves facing further legal hurdles later down the line potentially not having the authority to make decisions about their child’s education and medical care or facing legal complications should they separate or divorce.
It is important to make the application promptly and within six months of the child’s birth. When making the application, the child’s home needs to be with the intended parents and either or both of the parents must be domiciled in the UK, the Channel Islands, or the Isle of Man. The court has to be certain that the legal criteria has been met. A ‘parental order reporter’ is allocated to cases and a report prepared to assist the court in granting parental orders. It’s at that stage that expenses are looked at. Importantly, the court must also be satisfied that the surrogate mother and any other person who is a legal parent of the child has freely and with full understanding of what is involved, agreed unconditionally to the making of the parental order.
It can take many months for the parental order come through, and how long will depend on how busy the court is. Surrogacy in the UK (or anywhere) is by no means the most straightforward route, but for many women it offers a hopeful road to motherhood. Securing parental orders for parents who have wanted a child for years is one of the most fulfilling parts of my job. I feel incredibly lucky to play a role in bringing families together through my surrogacy work.
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