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Surrogacy: How it works and the legal aspects

View profile for Olivia Le Masurier
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Surrogacy: How it works and the legal aspects

The number of children being born through surrogacy each year has increased dramatically, almost quadrupling over the last decade and that number is expected to continue to rise. 

Disappointingly however UK surrogacy law is considered very much out of date and is now under review.

Currently the law is particularly complex and so it is crucial that anyone thinking about surrogacy takes legal advice early on to ensure they understand the process before getting started.

In her first article for the firm, Family Associate Olivia Le Masurier looks at how surrogacy works and the legal aspects.

What is surrogacy?

Surrogacy is an arrangement where a woman agrees to carry and give birth to a baby for an individual or couple who are unable to conceive or carry a child themselves. 

The natural birth mother is called the surrogate and the individual or couple are referred to as the intended parent(s).

How does surrogacy work?

There are two types of surrogacy, traditional and gestational.  Traditional surrogacy is where the surrogate’s egg is fertilised by the intended father’s sperm.

Gestational surrogacy is where the egg of the intended mother or egg donor is used and there is no genetic connection between the baby and the surrogate.

It can be difficult to find a surrogate in the UK and you may wish to ask a close friend or family member or alternatively you may decide to look abroad. 

There are non-profit agencies which can help with the matching process.  Using an agency is a good idea but you should do your research as not all agencies are equal in their service or performance. 

Once the child is placed with the intended parent(s), they will need to apply to the family court for a parental order, transferring legal parenthood to them from the surrogate.

How long does the surrogacy process take?

Surrogacy can be a long and complicated journey so it is important to be realistic about the time you will need to dedicate from the outset.  Typically it will take around 18-36 months from start to finish but be prepared for it to take longer.

What are the legal requirements for surrogacy?

Surrogacy involves numerous different stages, and there are strict legal requirements at each stage. In the case of international surrogacy, you will be subject not only to the relevant  family and immigration laws of England and Wales, but also the law in the country where your surrogate resides.

It is important to get legal advice right from the outset not only in the UK but also in the country where the surrogacy is taking place and in any other jurisdiction you may have citizenship. 

What are the legal risks of surrogacy?

It is an offence to carry out a commercial surrogacy arrangement in the UK.  The intended parent(s) are only permitted to pay the surrogate for her reasonable surrogacy expenses.  The advertising of surrogacy services is also an offence.

The law surrounding surrogacy can be complex and so there are many potential pitfalls, particularly if you opt for international surrogacy, which will involve not only English law but also the relevant law in the country where the surrogacy is due to take place.   

You will need to prepare for how you are going to travel back to the UK with the child after the birth and will need to obtain the correct travel documents for the child.  This may take several months and will need to be planned carefully.

There are strict criteria when applying for a Parental Order and, although the court has in recent years become more flexible, you are still urged to adhere to the criteria as every case is judged on its own facts and there is no guarantee the court will be flexible in your particular case. 

Related: Child Arrangement Orders - How they work and why you might need one

What are the legal rights of the intended parents?

Under UK law, when the child is born, the surrogate mother will be considered the legal parent. If she is married, her husband will be considered the legal father provided he consents.  This is true even in cases of international surrogacy where the intended parent(s) are named on the child’s birth certificate in the country where the child was born. 

At this point, the intended parents have no legal rights over the child and will need to apply to the court for a Parental Order transferring legal parenthood from the surrogate to the intended parent(s).

What is a surrogacy agreement?

A surrogacy agreement, sometimes called a surrogacy contract, records the arrangement agreed between the surrogate and intended parents.

Surrogacy is legal in the UK, but it is important to note that surrogacy agreements are not currently enforceable here. UK solicitors are not permitted to advise, negotiate or prepare a surrogacy agreement. 

That said, it is important that you enter into such an agreement so that both intended parents and the surrogate are very clear as to how the arrangement will work, and it will provide the court with an idea as to the parties’ intention if there is a dispute later on. 

What are the benefits of having a surrogacy agreement?

The surrogacy agreement should record everything that has been agreed between the parties, covering all practicalities and expectations. 

The surrogate mother and intended parents can use this an opportunity to sit down together to discuss the process, the respective involvement of each of the parties and any issues which need to be resolved at the outset.  This will often serve to avoid any later disputes.

Do I need a solicitor for surrogacy?

The laws surrounding surrogacy can be complex and so it is really important to get legal advice early on.  A number of the surrogacy agencies will insist upon you taking independent legal advice in the first instance.

In cases of international surrogacy, you should take advice not only in the UK but also in the country where the surrogacy is due to take place and in any other jurisdiction you may have citizenship.

Other issues worth considering

Both surrogate and intended parents will need to take significant time off work and employment law provides for this.  It is important to know your rights and so you should also speak with an employment law specialist at the outset.

Becoming a parent is also an important time to consider the future and so is a good time to think about making or updating your Will.

Bright and experienced Family Solicitors

If you have any questions following this article, please don’t hesitate to get in touch.

Our bright and experienced family law team would be happy to advise you on all of legal matters relating to surrogacy. 

We offer a free initial chat for all new clients, so you can speak to us to iron out the details and discuss your circumstances before committing to anything.

You can call us on 01202 499255 or fill out the form at the top of this page to find out more.

The content of this article, blog or video is not intended as specific legal advice. For tailored assistance, please contact a member of our team.