In the UK commercial surrogacy is illegal, but altruistic surrogacy is permitted. The Department of Health and Social Care (2019) identify a number of key decisions and processes that surrogates and intended parent(s) (IP(s) need to consider. The surrogacy pathway is illustrated in the table below.
Starting the process
There are a number of non-profit organisations that lawfully assist potential surrogates and intended parent(s) to navigate their surrogacy. These surrogacy organisations perform various checks (including medical and Disclosure and Barring Service (DBS) for all new members) and aim to provide support throughout the surrogacy journey. They can help surrogates find intended parent(s) and vice versa through social events that enable surrogates and intended parent(s) to get to know each other and decide if they want to work together.
Once intended parent(s) and a surrogate (and her spouse or partner if she has one) agree to work together they can construct a written surrogacy agreement. This is a statement of intention about how the arrangement will work prior to commencing the surrogacy. All those involved need to give their full consent to contents. Under UK law, any contracts or agreements signed before the child is born are not enforceable. Therefore, the agreement is not a legally binding document and surrogacy can go ahead without one. Surrogacy organisations recommend constructing an agreement to ensure consideration is given to a number of issues that may arise during the surrogacy process.
Agreements typically include:
- Strategies to support the surrogate’s health and emotional well-being.
- The extent of intended parent(s) involvement in appointments and decisions surrounding pre-conception, conception, pregnancy, birth and post-birth arrangements.
- How difficult scenarios will be responded to for example, miscarriage, still birth, foetal anomaly, multiple pregnancy, decisions to terminate, or breakdown of relations with intended parent(s).
- Communication and future relationship with intended parent(s), including explaining to the child about their origins;
- Legal implications and parental order application arrangements;
- Expenses and costs and under what circumstances payments to the surrogate might be stopped.
Surrogates can expect to be paid no more than reasonable expenses. The law does not provide a definition of reasonable expenses. What is regarded as reasonable will depend on the specific circumstances. The parties to a surrogacy agreement normally estimate their expenses at the start, with an agreed sum being clearly recorded in their agreement and the payments spread over the course of the pregnancy.
The family court have generally accepted the following as reasonable expenses:
- Surrogate’s loss of income;
- Surrogate’s partner/spouse’s loss of income;
- Additional childcare costs incurred for attending appointments;
- Domestic support during pregnancy;
- Additional food/supplements;
- Additional classes or therapies to support pregnancy;
- Travel and accommodation expenses;
- Maternity clothing;
- A modest recovery break;
- Any other incidental expenses.
Numerous costs are associated with surrogacy such as, fertility clinic tests and treatments, membership fees of non-profit organisation and legal fees. Non- profit organisations can provide information about this.
Becoming legal parent(s)
The legislation relating to surrogacy is UK-wide but there are different approaches to the court systems in Scotland and Northern Ireland. In England and Wales, the law regards the birth mother as the child’s legal mother. If married, her spouse/civil partner would also be recognised as a legal parent.
Legal parenthood is transferred from the surrogate to the intended parent(s) through a parenting order or adoption. To be eligible to apply for a parenting order at least one of the intended parents(s) must be a genetic parent of the child born to them through surrogacy. Intended parent(s) submit a parental order application to the court within six months of the child’s birth. If there is no genetic relationship to the child adoption is the only way that intended parent(s) can become the child’s legal parent(s). In these circumstances a registered adoption agency must be involved in the surrogacy process.
The surrogate must consent to a parental order application at least six weeks after the birth (this provides the surrogate with a cooling-off period). It is possible that during those six weeks the surrogate will bond with the child and decide to keep the baby. In most surrogacy arrangements the baby is handed over immediately after being born. However, if the surrogate refuses consent for the intended parent(s) parental order application they can apply for a Child Arrangement Order. In these circumstances the court considers what is in the best interests of the child. In practice the child usually ends up with the intended parents, even if the surrogate is named as a legal parent.
The three main UK surrogacy organisations are:
Information on the criteria considered for parental orders can be viewed in the two videos below from the Cafcass website.
What the court considers under section 54 of the HFEA Act
What the court considers under the welfare checklist
The surrogacy pathway document from the Government can be viewed here.