Bridget Garrood – Senior Consultant Solicitor – Divorce/ Finance/ LGBT+ Specialist

Surrogacy

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

An increasingly popular option

Surrogacy is increasingly an option for those who wish to start a family but who are unable to conceive a child themselves.

Surrogacy is an option both for LGBT+ parent (s) as well as heterosexual parents.

A parent’s path to choosing surrogacy as a path to having a family could be as a result of fertility -related health matters such as: recurrent miscarriage, repeated failure of IVF treatment, premature menopause, hysterectomy or absence or abnormal uterus or as a result of some other serious risk that may result from pregnancy.

Experts in Child Law and LGBT+ Family Law

We have one of the strongest children law teams in the south-west and are happy to assist with legal advice surrounding the surrogacy process including the application for the parental order a

nd if a surrogacy goes wrong.

Our team includes Bridget Garrood who is a member of the Law Society’s LGBT+ Divis

ion Committee and who specialises in family law cases for LGBT+ families. Our team also includes Kim Stradling who is one of the south-west’s leading child law specialists.

We have tried to answer several common questions about surrogacy below.

We can’t answer every question – and none of the answers constitute legal advice – but

if you need some assistance then we are very happy to help

FAQ's Surrogacy Law

A surrogacy arrangement is an arrangement where a woman carries a child for another person/couple with the intention that the child should be handed over at birth to the intended parents and raised as theirs.

A surrogate mother (or carrying mother) is a woman who agrees to carry and give birth to a child in pursuance of a surrogacy arrangement with the intention that the child will be handed over to the intended parents and that the intended parents will thereafter meet parental responsibility for the child.

The surrogacy arrangement will have been made before the surrogate mother began to carry the child.

These are the couple or individuals who cannot have children themselves and who wish to use surrogacy to become a parent.

Everyone’s situation is different. Intended parents (IP’s) could be in a heterosexual or same sex relationship. Intended parents could be married or living together/cohabiting. It may be that there is only one intended parent and they are not in a relationship but still wish to have a family.

When the child is born, it is necessary for the intended parents to obtain a parental order for the child for them to gain full legal parenthood. Unsurprisingly, most intended parents referred to be referred to as the child’s parents from the beginning.

Host surrogacy (or gestational surrogacy it is where the commissioning mother/intended mother donates an egg that is fertilised by sperm from the intended father before being implanted in the carrying mother (the surrogate).

This means that the intended parents are the genetic parents of the child. The surrogate will be the legal mother of the child until the making of a parental order.

Straight surrogacy is where the child is conceived by the artificial insemination of the surrogate using the sperm of one of the intended parents. This means that the surrogate will have provided her own egg to achieve the surrogacy.

The surrogate is the genetic and legal mother of the child until the making of a parental order.

The parental order transfers the legal parenthood from the surrogate (and her spouse or civil partner) to the intended parents.

The criteria to apply for a parental order are:

  • the intended parent(s) must be over 18 years old;
  • the intended parents may be married, in a civil partnership or living as partners in an enduring relationship or they can be an individual regardless of relationship status;
  • the surrogate, and her partner if they are married on 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, or the intended parent if an individual applicant;
  • the child must be living with intended parents
  • the intended parents must apply for the parental order within 6 months of the birth of the child.
  • At least one of the intended parents (if in a couple) or the IP (if an individual applicant), must be domiciled in the UK; and
  • the surrogate should be paid no more than reasonable expenses, unless authorised by the court.

For the full criteria, please see section 54 of the Human Fertilisation and Embryology Act (2008).If all the criteria are met, the court’s paramount consideration in making the parental order is the child’s lifelong welfare.

The application for a parental order should ordinarily be made within six months of the child being born

When considering an application for a parental order the court must be satisfied that no money or other benefit (other than expenses reasonably incurred) has been given or received in consideration of: entering into the surrogacy agreement, handing over the child to the applicants, making arrangements with a view to the making of an order or upon the making of an order.

The court must be satisfied that the woman who has carried the child and any other person who is a parent of the child (but is not one of the applicants) (this would include any man who is the father by virtue of the Human Fertilisation and Embryology Act 2008) has entered into the agreement freely and with full understanding of what is involved.

Commercial surrogacy is illegal in the UK.

It is a criminal offence for third parties to advertise that they facilitate surrogacy (although there are some exemptions for not-for-profit organisations).

No

It is an offence to advertise that you are seeking a surrogate or that you are willing to act as a surrogate.

It is also a criminal offence for third parties to negotiate the terms of a surrogacy arrangement for payment (which means that a solicitor cannot represent either the intended parents or the surrogate).

But the reality is that there should not be a great deal to negotiate. The main thing is to be confident about would be everyone’s commitment to the surrogacy arrangement and what will constitute expenses and how these will be paid. Also, what the arrangements will be post birth.

It is advisable for the agreement to be discussed thoroughly in advance so all parties feel confident about all the details. If there are any parts in which there is not agreement, then the parties should consider whether further advice or help should be sought. Sources of advice and help may include, for example, clinicians, fertility counsellors, and non-profit agencies.

It is also sensible to consider what might happen if things go wrong. For example miscarriage or multiple pregnancy or what might happen if there is a breakdown in the relationship between the surrogate and the intended parents.

Although a solicitor cannot negotiate the surrogacy agreement, it is permissible to seek legal advice before you negotiate the agreement yourself.

There is not a statutory definition of reasonable expenses.

There is very helpful guidance in The Surrogacy Pathway produced by the Department of Health and Social Care in November 2019

The guidance suggests that the following have generally been accepted as reasonable expenses:

  • the surrogate’s loss of earnings;
  • the surrogate’s partner/spouse’s loss of earnings;
  • additional childcare to support pregnancy and clinic/antenatal visits;
  • help with additional cleaning to support pregnancy;
  • additional food and other supplements;
  • additional classes or therapies to support pregnancy;
  • travel and accommodation before, during and after pregnancy (whilst setting up the surrogacy arrangement, treatment and in recovery);
  • maternity clothes;
  • a modest recovery break for the surrogate and her family; and
  • other incidental expenses that relate to the treatment and pregnancy.

It is sensible for the surrogacy agreement to include an estimate of the expenses.

When the intended parents apply for the Parental Order, the court will consider what has been paid to the surrogate. The intended parents will need to disclose to the court precisely what has been paid to the surrogate and what it was for.  Each case will be scrutinised by the court on its own facts.

The court will apply a two-stage process.

Firstly – was the payment for expenses reasonably incurred?

If not – should the court authorised the payments?

There may be reasons for payments to be made over and above expenses based on the child’s welfare. The court will wish to consider the extent to which the payments were disproportionate to reasonable expenses and whether the intended parents acted in good faith and whether there has been any attempt to defraud authorities.

There are cases where the intended parents have entered into surrogacy agreements overseas which were legal in those countries and where they have made payments which are more than what would be considered reasonable expenses under UK law.

On a case-by-case basis the UK courts have authorised the payments retrospectively based on welfare considerations to the child – but to knowingly enter into a commercial arrangement in breach of UK law carries risks that the parental order might not ultimately be approved.

A birth must be registered within six weeks.

If the surrogate mother of the child is married, the child born by the artificial insemination is treated as the child of the surrogate mother and her husband.

This means that both the surrogate mother and her husband will have parental responsibility. If the husband of the surrogate mother did not consent to the insemination, he will need to prove this to the satisfaction of the court.

If the surrogate mother is unmarried – she will have parental responsibility.

The position of the donating father is the same as the position of a known artificial insemination donor: he is the genetic father of the child.

It is the parental order which gives the intended parents parental responsibility.

If the surrogacy arrangement breaks down the court will decide the arrangements for the child.

In the 2017 case of Re H (A child), the Court of Appeal considered the approach to take following the breakdown of an intended surrogacy arrangement. The court asserted:

that the law does not take a special approach to decisions about surrogacy breakdown or other disputes within unconventional family structures. The welfare principle applies ‘with full force’ in such cases.

If you are in this situation – it is best you take legal advice.

More on this topic

The Surrogacy Pathway
The Surrogacy Pathway

Follow this link to download the Surrogacy Pathway from the website of the Department of Health and Social Care.

Read more
Care in Surrogacy
Care in Surrogacy

Follow this link to download Care in Surrogacy – guidance for the care of surrogates and intended parents in surrogate births in England and Wales from the website of the Department of Health and Social Care.

Read more
Having a child through surrogacy – guidance
Having a child through surrogacy – guidance

The Gov.UK website is helpful on the issue of surrogacy. Here is a link to one of the best pages on the website. The related content is also helpful.

Read more
Bridget Garrood; Leading LGBT+ Family Law Specialist
Bridget Garrood; Leading LGBT+ Family Law Specialist

Our team member Bridget Garrood is a leading specialist in LGBT plus family law. Bridget is also a member of the Law Society’s LGBT+ Division Committee. Find out more about Bridget here.

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