Family Law

Surrogacy Q&A

An article by Kathryn Cassells, Associate

Surrogacy Q&A

This week, 1 August to 7 August, is National Surrogacy Week: a weeklong event raising awareness of UK surrogacy. Although celebrity surrogacy tends to grab the headlines, surrogacy is not a route to parenthood reserved for the rich and famous.

Statistics show that surrogacy is on the rise in the UK: parental orders, which transfer legal parentage from the surrogate, increased from 117 applications in 2011 to 413 in 2020.

This blog answers some of the most common questions regarding surrogacy.

1.       What is surrogacy?

Surrogacy is where a woman, the surrogate, bears a child on behalf of someone else or a couple, who intend to become the child’s parents (the “intended parents”).

2.       Is surrogacy legal?

Surrogacy in the UK is legal. But it is also purely altruistic which means that commercial surrogacy arrangements are not permitted. A surrogacy agreement is not enforceable, either. A surrogacy agreement cannot be drawn up by a lawyer, even if all the involved parties are taking legal advice.

International surrogacy is an option, but surrogacy is actually only legal in a few countries. Each country will have its own legal framework. Some of the most popular destinations for surrogacy are the USA, Canada, and, until recently, Ukraine. The past few years have highlighted how even the most carefully planned surrogacy arrangements can be frustrated by circumstances out of everyone’s control.

It is essential that intended parents take legal advice both in the UK and in the country they are considering before embarking on an international surrogacy arrangement.

3.       How do I find a surrogate in the UK?  

Finding a surrogate is one of the biggest challenges facing intended parents. A surrogate cannot advertise and intended parents cannot advertise that they want a surrogate.

Thankfully, there are several organisations who can help intended parents and surrogates find each other in the UK, including Surrogacy UK, Brilliant Beginnings, My Surrogacy Journey, and Childlessness Overcome Through Surrogacy.

4.       Can I pay a surrogate?

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. Medical treatments (e.g. IVF)would be 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.

5.       Who is the child’s legal parent after a surrogacy arrangement?

A surrogate birth mother will be the child’s legal mother at birth. 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.

A parental order transfers legal parenthood from the surrogate birth mother to the legal parents. Without the parental order, one/both of the intended parents may not be treated as the child’s legal parent in the UK.

It is crucial to make the application for a parental order.

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.

6.       Who can apply for a parental order?

Couples or single applicants can apply for Parental Orders. At least one of the applicants must have a biological link to the child.

7.       When should the application for a parental order be made and how long will it take for the parental order to be made?

The application should be made within six months of the child’s birth, but it can take many months to get from the application stage to the final parental order stage. How long exactly depend son how busy the court is.

As a part of ensuring that the legal criteria has been met, the court must be satisfied that the surrogate has freely and with full understanding of what is involved, agreed unconditionally to the making of the parental order. The full legal criteria can be found at section54 of the Human Fertilisation and Embryology Act 2008.

8.       What if the surrogate does not consent to the parental order being made?

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.

9.       Are any changes expected to the law on surrogacy in the UK?

The Law Commission ran a consultation period from 6 June to 11 October 2019, and a final report setting out recommendations for reform of the current law, and a draft Bill, is expected in Autumn 2022.Watch this space!

 

Please do get in touch if you’ve been affected by these issues and would like advice on your position. You can email Kathryn direct at kathryn.cassells@vklaw.co.ukor the team at info@vklaw.co.uk