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Top tips for intended parents to consider when planning to have a baby via a surrogate

Deciding to have a baby via surrogacy can be both an exciting and a daunting experience. We outline the key things you need to think about.

Embarking upon the journey to have a baby via surrogacy can be both an exciting and a daunting experience. There are so many decisions to make, such as which surrogacy organisation to work with and which surrogate is the right fit for the family, that at first the process can feel somewhat overwhelming.

Below are some important factors that intended parents may wish to consider before they embark on their journey.

Find the right surrogate

Firstly, intended parents will need to take steps to find their surrogate and decide whether they wish to approach a surrogate in the UK or overseas. It is often advisable to enlist the help of a surrogacy organisation. They can help intended parents find their surrogate and vice versa. They will guide and support everyone through the process and will perform various check including medical and DBS checks.

Obtain independent legal advice

It is advisable before entering into a surrogacy arrangement to obtain independent legal advice. In particular, it is important that intended parents are aware of the following:

  • Altruistic (non-commercial) surrogacy is legal in the UK. However, surrogacy agreements are not enforceable;
  • Only reasonable expenses ought to be paid to the surrogate;
  • It is a criminal offence to advertise that you are seeking a surrogate or that you are willing to act as a surrogate;
  • Upon birth the surrogate (and if she is married or in a civil partnership, her spouse or civil partner) will be the legal parent(s) of the child assuming the partner or spouse consented to the pregnancy;
  • In order to transfer legal parenthood from the surrogate to the intended parents it will be necessary to apply for a parental order after the child is six weeks old but before the child is six months old.

Agree on a budget

Intended parents will need to give some thought to the costs involved in the surrogacy process and agree upon an appropriate budget. This is a critical part of the planning process. Remember to factor in all the anticipated costs — the cost of the IVF treatment/medical costs, the reasonable expenses of the surrogate, legal fees etc.

If possible, the intended parents and the surrogate should agree an estimate of expenses. Such expenses can include, among other things, loss of earnings, additional food or supplements, maternity clothes, travel and accommodation, and additional home help such as a cleaner. A record should be kept of any expenses incurred and any reimbursements made.

Get to know the surrogate

It is important that the intended parents take time to get to know their surrogate and consider the risks involved in a surrogacy arrangement. Whilst in reality cases where the surrogate changes her mind at some point during the pregnancy or following birth are incredibly rare, it is important that prior to entering into an arrangement all parties discuss and consider what would happen if things do not go to plan.

Discuss how medical decisions will be made

It is also helpful, at an early stage, to discuss any medical decisions that will be made in relation to the pregnancy and the birth. For example, do the intended parents wish to attend all the ante-natal appointments and is the surrogate comfortable with that? Does the surrogate have a support network of family and friends or will they look to the intended parents for that support?

It is often a good idea for the intended parents to consult their GP and inform them of their intention to have a baby via a surrogacy arrangement. The intended parents can then ask their surrogate to sign a letter stating that she is happy for the intended parents to make all medical decisions in relation to the pregnancy and the birth. Whilst such a letter is not legally binding, in practical terms it can be very useful.

Obtain a surrogacy agreement

Once in depth discussions have taken place between the intended parents and the surrogate it is advisable to record the outcome of those discussions and what has been agreed between the parties in a detailed surrogacy agreement. Whilst such agreements are not legally binding, a written agreement ensures that everyone involved has a clear understanding of how the arrangement will work in practice and what is expected of them. 

Plan your parental leave

The intended parents will need to consider taking parental leave. Intended parents in a surrogacy arrangement have the right to adoption leave and pay. However, these rights are only available if the intended parents apply for a parental order in respect of the child within six months of the birth and it is likely that their application will be granted. Irrespective of how long the intended parents have been employed by their employer, they may qualify for up to 52 weeks of adoption leave, providing they inform their employer at least 15 weeks before the baby is due that it is their intention to take adoption leave.

Make or update your will

The intended parents may wish to consider making a will or updating an existing will, so as to ensure that if anyone were to die unexpectantly the child will inherit from the intended parents, as opposed to the surrogate.

Consider life insurance

All pregnancies carry with them an element of risk and a surrogacy pregnancy is no different. It follows that it is advisable to take out a life insurance policy for the surrogate.

Decide whether the surrogate will be involved post-birth

A further consideration for intended parents is the level of involvement, if any, the surrogate will have with the child post-birth. Do the intended parents want the surrogate to have an ongoing relationship with the child and is this something the surrogate welcomes? If so, what sort of relationship would that be? Would the child to also have a relationship with the surrogate’s family?

Give thought to what you will tell the child

Finally, the intended parents need to give thought to how they will explain the child’s birth story to them and at what age they will have such a discussion. There is no right or wrong answer in this regard but the general consensus is that it is better to be open and honest with children about how they were created. If the surrogate has a post-birth relationship with the child, it may make it less of a conversation.

Can we help?

These tips are just that. It is important that in addition to considering all of this that you take legal advice for what will potentially be the most important journey of your and your child’s lives. We are here to assist you through the process, from start to finish.

For further guidance on any aspects of surrogacy, contact our child law solicitors.

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