The legalities surrounding surrogacy

In the last 10 years, the number of parents choosing surrogacy has nearly quadrupled according to the BBC, but there continues to be a lack of information regarding surrogacy in the UK. In fact, a 2022 survey discovered “74% of the people did not know surrogacy is legal in all four nations.”

If you’re considering surrogacy yourself, or simply want to learn more about what it is, we’re here to explain what surrogacy is, whether or not surrogacy is legal in the UK, and what your rights are whether you’re choosing to use a surrogate or be one yourself.

Topics to be answered in this article

What is surrogacy?

Surrogacy is an arrangement in which a woman agrees to carry and give birth to a child for another person or couple, the intended parent(s), who are unable to conceive or carry a child themselves due to medical or physical reasons. The surrogate may use their own egg for this process or, more commonly, use a donor egg or the egg of the intended parent. In order for the surrogacy to proceed, at least one of the intended parents must be genetically related to the baby through either their sperm or egg.

Is surrogacy legal in the UK?

Yes, surrogacy is legal in the UK but not as a commercial arrangement. This means that whilst the intended parent(s) can compensate their surrogate for her reasonable expenses, they cannot pay her for the act of surrogacy itself and to do so would be an offence. It is also illegal for any person to profit from surrogacy, meaning that charities cannot charge for assisting in introductions.

What is a surrogacy agreement?

A surrogacy agreement is a document setting out the terms agreed between the surrogate and the intended parent(s). This refers to issues such as arrangements for the birth itself, attendance at medical appointments, expectations of both sides and even decisions should complications arise with the pregnancy and/or during the birth.

Is a surrogacy agreement legally binding?

Surrogacy agreements are not legally binding and as such, are not enforceable. However, they are an invaluable resource to establish what each party’s expectations are for the process and for setting the groundwork to your journey.

Why should I get a surrogacy agreement if they aren’t legally binding?

Whilst surrogacy agreements may not be legally binding, these documents are extremely useful in setting out expectations for each party. They provide clear communication, establishing expectations, and safeguarding the interests of both parties involved. This will help when it comes to the financial and emotional side and will reduce the likelihood of any misunderstanding or conflicts.

Who are the legal parents of a child born through surrogacy?

The legal parents of a child born through surrogacy will be the surrogate and her spouse, if she is married/in a civil partnership and that person consents. Where the surrogate is unmarried, then the intended father, if his own sperm has been used, will automatically be the second legal parent. It is, however, possible for the intended mother to be named as the second legal parent so long as this is arranged with the clinic prior to insemination. 

The legal rights of the surrogate will lapse after the making of the parental order and they will no longer be held to be a legal parent.

What is a parental order?

A parental order removes the rights and responsibilities of the surrogate towards the child and conveys them upon the intended parents instead. This is the application made by the intended parents after the birth of the child; it cannot be made within the first 6 weeks following the birth and must be issued within 6 months. 

 

The process of applying for a parental order has many stages and will include a report from the Cafcass Parental Order Reporters. As part of this, they will meet with the intended parents and the child and prepare a report for the court on the suitability of an order. In addition, the intended parents will need to prepare statements for the court in support of their application. This can seem like a daunting process but will support and guidance, can be navigated smoothly.

How do you find a surrogate in the UK?

There are two main ways to do so – finding your own surrogate using friends or family, or registering with an agency/charity. When using friends or family, it is vital that each party’s expectations are considered to avoid conflict or upset in the future. There will already be a trusted relationship between you which can be reassuring. It is important to bear in mind, however, that as stated above you cannot advertise your need for a surrogate or offer a financial reward/incentive.

 

Alternatively, if this is not possible or suitable for the intended parents, an approach can be made to an agency/ charity who can put forward those volunteering as surrogates. The agency will put forward potential surrogates, for you to consider and to meet to see whether there is a mutual interest. The relationship with your surrogate is unique and intimate and so it is important that all involved are comfortable with each other. A charity can help with identifying and selecting your surrogate, with arranging egg or sperm donations, helping to prepare the surrogacy agreement and assisting you in instructing your chosen fertility clinic. 

 

Whether your surrogate is known to you previously or comes through an agency/charity, it is important that both the intended parent(s) and surrogate seek their own, independent legal advice. This will ensure that everyone is aware of the complexities of the process and their legal rights along the way. Fees for this advice would be covered by the intended parent(s).

How much does surrogacy cost in the UK?

There are multiple costs for the surrogacy process and the largest of these is likely to be your fertility clinic. Their costs will vary between organisations and will be set out to you in advance of any procedure taking place.

Costs to the surrogate themselves will be limited to reasonable expenses. Whilst they are not specifically defined, they are generally held to cover loss of income; maternity clothing; childcare for medical appointments; medical treatments, both clinical or holistic; travel costs and any other expense strictly related to the pregnancy or conception. They cannot be for the provision of the act of surrogacy itself. 

There will be court fees for the parental order application and for any legal advice and support you choose to access. 

Surrogacy agencies online estimate you could be spending between £20,000 to £80,000 depending on the surrogate and clinic you choose.

How can Goughs help?

Our specialist surrogacy lawyer Georgia Holmes will be able to offer advice and guidance to both intended parents and surrogates, whether in the initial stages or to assist with parental order applications.

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Author Bio

Georgia Holmes

I discovered my passion for Family Law early on in my career. I am committed to assisting my clients in overcoming troubles they have and work with them so they can move forward with confidence.

I work quickly and adapt to the change you often see at short notice in family cases, especially those involving children. As an empathetic individual I am able to get my clients to be open and honest so we can resolve things as quickly as possible for their benefit.

There is nothing more rewarding than seeing positive outcomes achieved for my clients and any children involved.

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