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Our family law expert answers some frequently asked questions on surrogacy.

We answer some frequently asked questions on surrogacy.

Surrogacy plays an important role in modern society, helping to create much-wanted families. More and more people, including LGBTQ+ couples, are turning to surrogacy as this is often the only option available for those who wish to have a genetic link to their child. 

Unfortunately, however, a lot of confusion surrounds this complex area of law, and many would agree that the law is not up to speed with where we are scientifically, or socially.

Here are some answers to questions that we are frequently asked.

What is surrogacy?

Surrogacy is defined in the Surrogacy Arrangements Act 1985 as a mother who carries a child in pursuance of an arrangement made:

  1. before she began to carry the child; and
  2. with a view to any child carried in pursuance of the arrangement being handed over to another person or persons.

If someone decided, either during pregnancy or after a child was born, that they would like someone else to raise the child, this would not come within the legal definition of surrogacy – the arrangement has to come to fruition prior to the woman becoming pregnant.

How common is surrogacy?

Surrogacy is still relatively rare but the number of people turning to surrogacy is increasing year upon year. There are no reliable statistics regarding surrogacy in the UK, but UK courts reported receiving 67 applications for a parental order in 2008. Fast forward to present day and the number of such applications has now increased to over 400. That’s an increase of almost 600%.

Why do people decide to have a baby by a surrogate?

People have babies via surrogate arrangements for a whole host of reasons. Listed below are just a few examples:

  • Couples who are unable to conceive naturally due to fertility issues
  • A single man
  • A same sex couple
  • A couple who has experienced trauma such as stillbirth or recurrent miscarriage
  • A female partner who does not wish to carry their own child for personal reasons such as the impact it would have on their body/career
  • Females who were born without a uterus or cancer survivors who have had their uterus removed
  • A couple who has experienced a number of failed IVF attempts

What is the difference between traditional surrogacy and gestational surrogacy?

With gestational surrogacy the surrogate is not the biological mother and has no genetic link to the baby. It involves the creation of an embryo from the egg and sperm of the intended parents, a donated egg and sperm of the intended father or donated sperm and eggs. The embryo is then implanted in the surrogate at a clinic.

In contrast, traditional surrogacy is where the surrogate is the biological mother. The surrogate is artificially inseminated with the sperm of the intended father or of a sperm donor.

Which is more common, gestational surrogacy or traditional surrogacy?

Over the last 30 years, gestational surrogacy has become the most common type of surrogacy.

What is the difference between commercial and altruistic surrogacy?

Altruistic surrogacy is where the surrogate does not accept payment for carrying a baby on behalf of someone else. In contrast, commercial surrogacy is where the surrogate is paid a fee, in addition to any out-of-pocket expenses. Commercial surrogacy arrangements are illegal in the UK but not in countries such as India and some states in the USA.

Yes, it is perfectly legal to enter into a surrogacy arrangement in the UK. However as highlighted above, any form of commercial surrogacy is illegal. This means that no money, other than “reasonable expenses”, can be paid to the surrogate, unless authorised by a court. It follows that a criminal offence will be committed if a third party helps to negotiate or facilitate a surrogacy arrangement for payment, or a surrogate advertises her services. 

Am I able to seek advice from a solicitor?

Whilst a solicitor cannot negotiate the terms of a surrogacy agreement on behalf of the intended parents or the surrogate and cannot get involved in any kind of surrogacy arrangement, they are able to give advice with regard to the obtaining of a parental order (see below) and can certainly assist with the necessary court application once conception has occurred.

What about non-profit organisations — can they help?

Yes. There are a number of surrogacy agencies in the UK such as Brilliant Beginnings and Surrogacy UK who are able to offer support to intended parents and surrogates on the basis that they are non-profit organisations. 

Are surrogacy agreements enforceable in the UK?

No. As things stand, surrogacy agreements are unenforceable in the UK. This is because under English law, a surrogate mother cannot be forced via any contractual provision to hand over her baby and likewise the intended parents cannot be forced to pay money to the surrogate or assume responsibility for the child upon birth.

It follows that any such written agreement or contract will not be enforceable, and a high level of trust needs to exist between the surrogate and the intended parents.

What is the point of having a surrogacy agreement if it is not enforceable in the UK?

Disputes rarely arise and in the vast majority of surrogacy arrangements everything goes to plan. That being said, it is always a good idea for anyone considering surrogacy to discuss matters in detail with the surrogate and commit any plans to paper so that everyone’s intentions and expectations are clear. That way, disappointment, potential conflict and misunderstanding can be avoided. 

What sort of things should be included in a surrogacy agreement?

All surrogacy agreements are bespoke, and the contents will differ depending on the specific circumstances and the individuals involved. The parties to the agreement may wish to give thought to the following:

  • Arrangements for conception
  • Who will attend any antenatal appointments/scans
  • Whether the surrogate is expected to take any particular supplements and abstain from alcohol/nicotine/drugs
  • Who will attend the birth
  • What will happen post-birth
  • Will the surrogate continue to have a relationship with the child post birth
  • What payments will be made to the surrogate to cover her reasonable expenses
  • What would happen in the event of a complication, such as a still birth or the baby being diagnosed with a serious health problem
  • The process for obtaining a parental order, and perhaps more importantly, everyone’s commitment in this regard

Whilst some of the above may be sensitive in nature and difficult to discuss, it is always better to have these conversations at any early stage, as opposed to after conception. Indeed, it is important that the intended parents are matched with the right surrogate and vice versa.

As highlighted above, payment ought to be limited to “reasonable expenses”. These can include, but are not limited to, loss of earnings, medical expenses, maternity clothes, vitamin supplements and relaxation treatments such as massage. In the UK, surrogates typically receive between £12,000 and £20,000 by way of expenses.

How can people go about finding a surrogate in the UK?

They can approach a non-profit agency for help. Sometimes they arrange social events so that intended parents can meet other people going through the same process as well as potential surrogates. 

It is important that the surrogate and the intended parent(s) are compatible and share a good relationship. It is likely that they will need to spend a lot of time together and both will need the support of the other to help them navigate the process. The relationship between the surrogate and the intended parent(s) is often very special, whilst at the same time very intense.

What proportion of people having a baby via a surrogate choose to seek a surrogate overseas?

It is estimated that roughly 50% of intended parents seek a surrogate outside of the UK.

Why do people choose to seek a surrogate overseas?

Although surrogacy is legal in the UK, the legal framework is restrictive. As highlighted above, surrogacy agreements are unenforceable. The intended parents are anxious to secure greater certainty and protection. It is also difficult to secure a surrogate in the UK as they are not permitted to advertise and there are simply not enough surrogates available.

In some countries commercial surrogacy is permitted and intended parents can approach an agency which will screen the surrogate and provide a comprehensive service. It may also be possible to sign up to a surrogacy agreement which is legally recognised in that country and will provide for the intended parents to be named as the legal parents on the birth certificate. It is easy to understand why such an offering would be attractive to the intended parents.

Which countries are the most popular destinations as far as overseas surrogacy is concerned?

The US, Canada, and Georgia. Prior to the current war between Russia and Ukraine, Ukraine was also a popular destination.

If the intended parent(s) decide to approach a surrogate overseas, are there any additional steps they need to take?

Yes. Any documents which the surrogate is invited to sign should be in her own language. The intended parent(s) will need to engage the services of a notary to go through any documents with the surrogate in her own language and the notary will then produce a statement setting out all the circumstances of the case.

More importantly, the intended parent(s) need to give thought to how they will get the baby back to the UK and we would strongly advise intended parents in this situation to seek advice from an immigration specialist, not only in the UK but also in the country where the surrogate resides. Certainly, it is advisable to get any paperwork in place in good time.

Sometimes it is possible to apply for an emergency passport and return with the child straightaway. A lot however will depend on whether the child has a genetic link with at least one of the intended parents. 

It is not unheard of for intended parents to get stuck overseas with their new baby for prolonged periods whilst waiting for issues concerning immigration to be resolved. 

If a child is born via a surrogate, who will be the legal parents upon birth?

At present, under UK law the birth mother is always the legal parent. It follows that, upon birth, the surrogate will be the child’s legal mother, irrespective of whether the child is born in the UK or overseas.

If the surrogate is married or in a civil partnership, her partner will be the other legal parent even though they will have no biological connection to the child. This rule applies unless the husband, wife or civil partner of the surrogate can show that they did not consent to the conception.

If the surrogate is not married or in a civil partnership, the second legal parent will normally be the intended father (assuming his is the biological father). Alternatively, if conception takes place at a UK fertility clinic, someone else can be nominated as the second parent such as a non-biological father or an intended mother.

Who is responsible for registering the birth and who will be entered on the birth certificate?

If the child is born in England or Wales, it is the responsibility of the surrogate to register the birth. She will be registered as the mother and her civil partner/spouse will be registered as the second parent. 

If the surrogate is not married or in a civil partnership, the other legal parent can be included on the birth certificate provided he or she attends the birth registration. If, however, the intended parent is not the biological father, he/she will need to bring with them the HFEA forms nominating them as the second parent. Such forms need to be executed and signed prior to conception.

Is it possible to register more than two parents on the child’s birth certificate?

No. Only two parents can currently be identified on the birth certificate.

How can the intended parents become the child’s legal parents?

The intended parents will need to apply for a parental order in the UK following birth. 

If you have any questions about surrogacy, please contact our child law solicitors.

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