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Surrogacy: An Overview

What is surrogacy?

Surrogacy is when a woman carries a baby for someone else who is unable to conceive themselves.

There are many reasons why someone may consider surrogacy.  This includes recurrent miscarriages, repeated failure of IVF, premature menopause, serious risk to health that may result from pregnancy, LGBT+ parents and many more.

What types of surrogacy are there?

There are two types of surrogacy.  The first is called straight surrogacy.  The surrogate provides her own eggs and the intended father provides his sperm.

The second is host/gestational surrogacy.  This is where the surrogate does not provide the egg.  The child is created invitro (in a test tube) and transferred to the uterus.  This can either be by using the egg of the intended mother and sperm of the intended father or in the alternative, the egg/s of a donor can be used and the sperm of the intended father.

What is a surrogate Mother?

The surrogate may or may not be genetically related to the child and cannot be paid more than reasonable expenses to be a surrogate.  She is the person who will carry and give birth to the child.  Before conception an agreement is reached that a parental order will be made following the birth of the child.  She will legally be the child’s mother at birth, regardless of genetic relationship.

What is the surrogacy process?

There are many organisations that can assist with the surrogacy process.  It is always advisable to seek support and advice before embarking on the process.  This is not only in relation to the process itself, but also the legal implications.

Practically, there are clinicians, fertility counsellors and non-profit agencies that can help.  It is important that the surrogate and the intended parents get to know each other and agree how the surrogacy arrangement is to work.  The first step is therefore to enter into a surrogacy agreement.  This is not a legally binding document, but rather a statement of intention.  It confirms the arrangements, before conception, before birth and after birth.  It should include all details about how the conception is to take place, the pregnancy arrangements and should also cover what is agreed should something go wrong.

It is also important to include in the surrogacy agreement in as much detail what payments are to be made and what for.  It is a criminal offense to pay a surrogate, but it is important to agree what reasonable expenses are to be made and what the likely treatment and legal costs may be.  This can include the surrogate’s loss of earnings.

After the birth of the child, the intended parents will apply to the court for a parental order on form C51.  This is the legally binding document that provides the intended parents with parental responsibility for the child – it is very similar to an adoption and severs the surrogates parental responsibilities and rights over the child. The application is made to the High Court of the Family Court and is dealt with under family proceedings.  As soon as possible after issue of the application the court must:-

  1. Set a date for directions within four weeks of the application;
  2. Appoint a parental order reporter to act on behalf of the child to safeguard;
  3. Set a date for the hearing of the application

The agreement of the carrying mother is required after birth and can be provided on form A101 or in a similar format.  This is required from the surrogate mother and any other parent (for example the surrogate’s husband).

Consent is not required from a person that cannot be found.  Consent cannot be provided within the first six weeks of the birth of the child and the application must be made within 6 months of the child’s birth.

What are the risks of surrogacy?

Surrogacy can be risky and it is important to fully consider and understand those risks prior to proceeding.  For example;

  • There is a risk that the surrogate mother may changed her mind after birth.
  • There is also a risk that the intended parents change their mind after birth of the child.
  • The relationship between the surrogate and the intended parents could break down and may run into difficulties agreeing about an aspect of care. This is why it is important to get to know each other before reaching any form of agreement.

Surrogacy can be a very emotional time and so it is important that everyone involved feels that they can cope with the emotional demands of a surrogacy relationship.  There are also financial implications, and whilst it is against the law to pay a surrogate, reasonable expenses for the surrogate and medical expenses can be incurred.  It is good to try to agree roughly what these are likely to be in advance.

What are the legal rights of parents and surrogates?

Intended Parents – Becoming the child’s legal parents

These are couples or individuals whether heterosexual or not (married or unmarried) who cannot themselves have children.  To be able to apply for a parental order for the child, one party must be genetically related to the child.  They will ultimately be responsible and care for the child and will have parental responsibility once the parental order is made.

The intended parents do not have any legal rights until a parental order is sealed by the court.  This means that both the surrogate and the intended parents can change their mind prior to the parental order being granted.

Legal Parents at Birth

The woman who gives birth to the child is legally the child’s mother at birth (i.e. the surrogate).  The surrogate’s husband or wife will be the other parent unless that person does not give permission.  Parenthood is transferred with a parental order.

What happens if the child is born outside of the UK?

If the child is born outside of the UK, the intended parents can apply for a parental order if one of them is living within the UK.  If the child is not a UK national, they may also need a visa to enter the UK during this process.  Using a surrogate abroad can be complicated as different countries have different rules.  It is always best to take legal advice in advance.

Is it illegal to pay for a surrogate?

It is a criminal offence to advertise that you are looking for a surrogate or that you want to act as a surrogate.  It is also a criminal offence for 3rd parties to advertise that they can facilitate surrogacy (there are some exceptions for non-profit organisations).  It is a criminal offence to negotiate surrogacy for payment.   It is only reasonable expenses and medical bills that can be paid.

Do I need a parental order?

It is very important for the intended parents to have a parental order.  Without this, they may not be the child’s legal parents unless parenthood is obtained through adoption.  This means that they may:-

  1. Not have the authority to make decisions about their child’s education or medical care
  2. Not be able to travel abroad with the child
  3. Face legal complications should they separate or divorce
  4. Face difficulties with issues of inheritance or divorce
  5. Need to find and involved the surrogate in future decisions involving their child

At Hawkins Family Law we can guide you through the surrogacy process.  We can help you with each step to make sure the process is as straight forward and smooth as possible.  It can be an emotional, but also exciting, time.

We have additional support from an in-house psychotherapist who can also assist with the emotional demands of surrogacy.  If you are looking to embark on the process, then get in touch and someone will be able to answer any questions you may have.

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