Surrogacy Insights

Surrogacy is when a woman voluntarily carries and gives birth to a child on behalf of her intended parents.   It can provide a pathway to parenthood for individuals or couples who cannot conceive or carry a pregnancy to term, and it involves a range of legal, ethical, and social considerations.  Surrogacy is permitted in the UK, but strict rules apply, and surrogate agreements are not enforceable. 

Surrogacy Agreement

Parties to a surrogacy arrangement in the UK are encouraged to enter into a surrogacy agreement even though it is unenforceable.  Such agreements will:

• Document the parties’ understanding and agreements concerning their expectations of the process.
• Record the agreed contact before, during, and after birth.
• Offer evidence of the financial arrangements regarding reimbursement of expenses.
• Confirm that each party has received legal counsel and understands the agreement and its process.
• Document the understanding that a parental order will be sought to grant parental rights to the intended parents after birth.
• Confirm that the surrogate agreement is legal but unenforceable and that the surrogate will be recognized as the child’s legal mother.
• That all parties desire and consent to the intended parents being able to apply for a parental order from the courts to recognize them as the child’s legal parents.

Permitted Payments

Although payment to a surrogate for carrying a surrogate baby is illegal, reimbursement for reasonable expenses is allowed.  There is no definition of reasonable expenses (nor a fixed amount for what is allowed), so each court must decide what is reasonable for the case.   The courts usually take a very lenient approach.  There is also a history of the High Court retrospectively authorizing payments of more than expenses in international surrogacy cases.  Evidence is paramount to the courts that things have been handled responsibly, and there has been no exploitation of the surrogate and no attempt to circumvent child protection law.  There has never been a case where the court has refused to make a parental order because too much was paid.

IVF Clinic

All treatment at fertility clinics in the UK is governed by the Human Fertilization and Embryology Authority’s Code of Practice:

• This Code of Practice covers the obligations of the clinics and personnel to the surrogate, intended parents, and donors, if any.
• There is a requirement for mandatory counseling.
• In addition, all parties must undergo screening and testing for infectious diseases.
• It is recommended that all embryos must be quarantined six months before implantation.

Agencies

It is a criminal offense for third parties to receive payment for arranging surrogacy, although there is an exemption for non-profit organizations.  There are a handful of experienced and excellent non-profit surrogacy agencies and organizations in the UK.  They help intended parents and surrogates find each other and offer guidance and referrals to mental health professionals, solicitors, and medical clinics. They also provide support groups for surrogates, donors, and intended parents.  It is highly recommended that intended parents and surrogates in the UK seek assistance from these non-profit organizations when pursuing surrogacy.

Surrogacy Arrangements Act 1985

From a legal perspective, surrogacy in the UK is complex and evolving.  No specific legislation comprehensively regulates surrogacies for all of the UK.  The legal framework varies depending on the country within the UK.

1. In Scotland, surrogacy is regulated by common law and principles of legal parenthood, which recognize the intended parents as the legal parents if specific criteria are met, e.g., obtaining the surrogate’s consent and undergoing the appropriate legal process. However, there is an ongoing debate about the need for specific surrogacy legislation in Scotland.
2. In England, Wales, and Northern Ireland, surrogacy is governed by the Surrogacy Arrangements Act 1985. The main provisions of the Act are as follows:

Commercial surrogacy is prohibited. Paying a surrogate in exchange for her carrying a baby is illegal.

1. It is a criminal offense to advertise for a surrogate, although non-profit organizations have some exemptions.
2. Intended parents can seek the assistance of a surrogacy agency, which can help them find a surrogate and navigate the legal process. The Human Fertilization and Embryology Authority (HFEA) regulates surrogacy agencies in the UK.
3. A Surrogate Agreement is legal but unenforceable and records how the intended parents and surrogate want the arrangement to work.  It can provide for the payment of reimbursement of reasonable expenses and payments for medical, legal, and mental health services and to outline the rights and responsibilities of all parties. 
4. The Parties must all be represented by independent legal counsel before entering into a surrogacy agreement.
5. At least one parent must be genetically related to the child.
6. The Act does not provide for the automatic recognition of the intended parents as legal parents. The surrogate’s name will appear on the original birth certificate, and if married, her spouse or civil partner’s name will also be entered on the birth certificate.  Legal parenthood can be transferred to the intended parents via a Parental Order or Adoption after the child is born.  However, if the surrogate does not consent to the Parental Order, the surrogate will remain the child’s legal parent.
7. The intended parents must apply for a parental order through the Family Courts within six months of the baby’s birth. This process involves a court application and a hearing, and the surrogate must provide informed consent for the parental order to be granted.  Once the parental order is granted, the intended parents will have full legal rights and responsibilities for the child.