Are You Considering Surrogacy?

Over the course of the next 12 weeks, Pinder Reaux & Associates Ltd, a specialist Family Law firm will bring to you a series of six interesting and eye opening articles about surrogacy.

The first article, will present the basics of surrogacy: what it is and how it works. In later weeks, more in depth issues will be dealt with in detail allowing you to decide whether surrogacy is the right option for you.

What is Surrogacy?

Surrogacy is when another woman carries and gives birth to a child for you. Surrogacy can be an emotionally intense and legally complex arrangement; however it is growing in popularity among parents as a way of having children and possibly, may be the right option for you and your partner.

Why consider surrogacy?

You and your partner may choose surrogacy if you are unable to carry your own pregnancy. You may also be considering surrogacy because of recurrent miscarriages; a health condition which could mean that pregnancy and/or birth could be dangerous; your (or your partner’s) womb is abnormal (whether since birth or after a hysterectomy); fertility treatments (such as in vitro fertilisation- IVF) have failed, You may be in a same-sex relationship and therefore cannot have your own children or it simply may be your method for having children.

How does surrogacy work?

There are two different types of surrogacy:-

1. “Straight surrogacy”

A surrogate mother will conceive after being artificially inseminated with the intended father’s sperm. This woman will then carry the baby and surrender all of her legal rights to the baby, to the biological father and his partner when the baby is born. In this instance, the father’s partner (the new mum), can then apply to legally adopt the baby.

2. “Host surrogacy”

A surrogate mother carries a donated embryo to term. The embryo is conceived through IVF or a similar method. This means the baby can be the biological child of you and your partner, and the surrogate merely carries your baby for you until birth.

Is surrogacy legal in the UK?

Yes, as long as no fee, apart from expenses, is paid to the surrogate. However, it is illegal to advertise for a surrogate or for a surrogate to advertise, and it is against the law for a clinic to find a surrogate for you.

What are the legal issues surrounding surrogacy?

Surrogacy law in the UK is complex and there are many legal issues to consider. This is the case whatever your personal situation (single, married, cohabiting or in a same-sex relationship or civil partnership) and you should be clear on your rights from the outset of the procedure.

Surrogacy arrangements are not legally enforceable and criminal sanctions restrict advertising and prohibit commercial surrogacy organisations in the UK. However many couples enter into surrogacy contracts with the surrogate in order to ensure each party is aware of what is expected of them and to limit the risk that something may go wrong. Although these agreements are not legally binding they are being considered as persuasive authority in the family courts and therefore it is better to have one in place, rather than nothing.

The surrogate mother will be the legal mother of the child unless or until parenthood is transferred to the intended mother through a parental order or adoption after the birth of the child. This is because, in law, the woman who gives birth is always treated as the mother. If the intended parents wish to become the legal parents of the child, they may either apply to adopt the child, or apply for a parental order.

If you do not apply for either a parental order or adoption, this will leave you (as the new parents) without the right to consent to medical treatment or immunisations, register the birth of your baby or apply for a passport for your child. Essentially, the effect of the parental order and/or adoption is to transfer the rights and obligations of parentage to the intended parents, providing certain conditions are met.

The application for a parental order must be made to the Court within six months of the birth of the child. For many new parents, the time following the birth of your baby will be busy and stressful and before you realise, your baby will be reaching its first birthday. It is therefore important to protect and activate your legal rights to your child prior to the six month period elapsing. Similarly, you should also act quickly if an application for adoption is required; to limit any risk your surrogate could change her mind.

Do you apply for a Parental Order or Adoption of your child?

To register your legal rights to your child, you will either apply for a Parental Order or Adoption Order. The application you make will depend on your family’s situation.

Have you identified the right surrogate?

Every couple wants a healthy child and therefore identifying the right surrogate mother is an important decision for many couples.

Many will want to know that the surrogate is in good health and does not smoke and/or drink and agrees not to do so when carrying their baby.

Others will enter into a strict arrangement as to what the surrogate can and cannot do during pregnancy in order to limit any possible health risk to their unborn child. Couples will also usually pay the surrogate’s expenses along with additional legal and agency fees if a contract is involved. Expenses can include travel, maternity clothes and loss of earnings.

What happens if I do not enter into a surrogacy agreement?

If you proceed without a surrogacy agreement, known as an informal arrangement, you as the donor or the intended parent could be in a vulnerable position. The likely scenario that can arise giving justification to a formal process can include: the surrogate deciding to keep the baby herself; refuse to give you contact; playing an active role in the child’s upbringing even though she agreed not to etc.

A formal arrangement sets out all the agreed terms before anything has been done. Although this is not binding or legally enforceable, it will clearly set out your intentions and the family courts are showing some sympathy to these arrangements.