Surrogacy itself is legal in the UK however surrogacy agreements between a surrogate and intended parents are not legally enforceable. If either party to a surrogacy agreement changes their mind about surrogacy neither party can be forced to hand over a child or take responsibility for the child.
In our experience individuals embarking on surrogacy think carefully about the implications before proceeding, and disputes after birth between a surrogate and intended parents are rare. Nevertheless, it is always worth keeping in mind that to a large extent surrogacy arrangements depend on the good faith of the parties and on each side honouring any surrogacy arrangement that has been made. Irrespective of the legal considerations, establishing a trusting relationship between the surrogate and intended parents is of primary importance.
What Are The Rules About Surrogacy In The UK?
There is a strict legal framework in the UK governing surrogacy. The Surrogacy Arrangement Act, 1985 (The Act) describes a surrogate mother as a woman who carries a child following an arrangement
- made before she began to carry the child, and
- made with a view to any child carried being handed over (and parental responsibility being met) by someone else
There are two types of surrogacy. In ‘traditional’ surrogacy using artificial insemination, the surrogate mother has a genetic link to the child. More often in the UK ‘gestational’ or ‘host’ surrogacy is used where donor eggs or eggs from the intended mother are used, and there is no link genetically between the surrogate and the child.
The Act makes it an offence to advertise for a surrogate or for a potential surrogate to advertise that she is looking for intended parents. It is also an offence under the Act to arrange or negotiate a surrogacy arrangement as a commercial enterprise.
Overseas Surrogacy
UK surrogacy laws are regarded by some as restrictive when compared to the rules in other countries such as the US and Canada. For this reason many UK citizens enter surrogacy agreements with surrogates overseas. If you are considering this, you should ensure that you follow the rules that apply in the relevant jurisdiction and take all necessary steps to comply with UK immigration and visa rules. Otherwise you could face severe delays when returning to the UK with the child.
How do I begin the surrogacy process?
The safeguards and restrictions in the legislation mean that most people embarking on surrogacy in the UK work with one of the non-profit surrogacy organisations such as COTS or Childlessness Overcome Through Surrogacy that help potential surrogates and intended parents deal with the surrogacy process. These groups help individuals decide if surrogacy is right in the circumstances and can coordinate the search for a surrogate, refer intended parents to clinics and advise on all other matters associated with surrogacy. After birth assistance is available to ensure the smooth transfer of legal parenthood.
Getting The Surrogacy Agreement Right
As we have pointed out surrogacy agreements aren’t legally binding in the UK, but they do serve a useful purpose. Agreements are a way for both sides in the surrogacy arrangement to set out their roles and commitments. They also ensure that there is effective communication and mutual understanding during a sensitive time. And finally, a well-drafted surrogacy agreement is a useful reference point to help parties navigate their way through any issues or disputes that may arise. The agreement should cover matters such as:
- Details of the intended parents and the surrogate, including marital status
- Arrangements for conception, including any details of clinics
- Pregnancy support and contact
- Arrangements for the birth and for the period immediately after the birth
- Provisions for dealing with complications such as multiple pregnancies
- Future communication
- Dealing with parental order applications
- Expenses and costs
After the birth: Getting A Parental Order
In the UK legal parenthood cannot be transferred to the intended parents under a surrogacy agreement. When the child is born the surrogate is the legal parent and this remains the position until the intended parents make a successful application for a parental order. Thes orders will only be granted with the surrogate’s consent and where the criteria in the Human Fertilisation and Embryology Act, 2008 are satisfied.
These include the following:
- intended parent(s) must be over 18
- the surrogate, and her partner if married or in a civil partnership, must give consent (no earlier than 6 weeks after the birth of the baby)
- the child must have been conceived artificially and be genetically related to one of the intended parents
- the child must be living with the intended parent(s)
- all applications must be made within 6 months of the birth of the child
- the surrogate should be paid no more than reasonable expenses, unless authorised by the court
Applications for parental orders like this are usually straightforward but will only be made if they are in the best interests of the child. If your case involves overseas surrogacy you must still apply for a UK parental order. As part of the process a CAFCASS parental order reporter is appointed to provide the court with an assessment of whether a parental order is appropriate or not. These reports usually take between 8 and 12 weeks to prepare.