An Introduction to Surrogacy
01 March 2021
Lauren Guy, Director at Edward Cooke Family Law and specialist in modern family structures, provides a useful introduction to surrogacy for individuals and couples considering their next steps, outlining types of surrogacy, legal and emotional considerations, and useful sources of additional information.
What is surrogacy?
Individuals and couples turn to surrogacy, an arrangement whereby a woman agrees to give birth to a child for the Intended Parent(s), for many different reasons. One key feature of surrogacy is that at least one of the Intended Parents has a biological link to the child carried by the surrogate.
Traditional or gestational surrogacy?
There are two types of surrogacy, known as traditional and gestational surrogacy.
With traditional surrogacy, the surrogate is artificially inseminated using the intended father’s sperm, or an embryo, created using her egg and the intended father’s sperm, is implanted in her womb.
In contrast, with gestational surrogacy there is no biological link between the surrogate and the child. The surrogate will be implanted with an embryo which has been created without the use of her eggs. At least one of the Intended Parents will have a biological link to this embryo and, sometimes, the embryo will have been created using the intended mother’s egg and intended father’s sperm, so that it has biological link to both Intended Parents.
Is surrogacy legal in the UK?
Surrogacy is legal in the UK, but it must be altruistic. This means that you cannot pay a surrogate to carry your child (although it is lawful to reimburse the surrogate for reasonable expenses).
The laws around surrogacy in the UK are not straightforward. UK law always considers the woman who gives birth to a child to be that child’s legal mother. If she is married, her husband is the legal father. This is true even of surrogacy arrangements, so the surrogate, and her husband if she has one, are considered the legal parents of the child on birth.
The Intended Parents must apply for a Parental Order to be made in their favour, which declares that they are the child’s legal parents and extinguishes the legal relationship between the child and the surrogate (and her husband, if she has one).
Finding a surrogate
Some Intended Parents are fortunate enough to have a friend or family member volunteer who will act as their surrogate. If this doesn’t apply to you, you need to think about whether you will search for a surrogate at home or abroad.
There is a small community of altruistic surrogates in the UK. The best way to meet them is to join one of the not-for-profit surrogacy agencies listed below, rather than via social media. The support offered by these agencies is designed to give your surrogacy arrangement the best chance of success. It also provides much-needed reassurance as, sadly, there are individuals out there ready to take advantage of Intended Parents.
Some Intended Parents choose to search abroad, as they are particularly attracted to jurisdictions where commercial surrogacy has led to a bigger pool of potential surrogates and strict regulation. If you are considering international surrogacy, make sure you have taken clear legal advice both in the UK and in your country of choice. You will need to give some thought as to how you will travel back to the UK with your child after the birth.
Be aware that surrogacy is not legal in all countries. Indeed, many countries have banned or heavily restricted surrogacy in response to scandals which have exposed poor ethical standards.
Don’t underestimate the importance of counselling
It is highly advisable for both the Intended Parents and the surrogate (and her husband, if she has one) to attend some counselling sessions to ensure the implications of the surrogacy arrangement have been carefully explored. This will ensure your surrogacy arrangement has strong foundations. The counselling process can also provide support throughout the surrogacy journey.
Surrogacy agreements are not legally binding or enforceable in the UK. That said, it is sensible for the Intended Parents and the surrogate (and her husband, if she has one) to enter into a written surrogacy agreement. Many disputes in life are triggered by misunderstanding or misinterpretation, so recording things in black and white significantly reduces the potential for conflict in the future.
There are a number of offences connected to assisting in the negotiation of a surrogacy arrangement in the UK, so your lawyer will not be able to help you with this. There is an exemption for not-for-profit organisations so, again, seek support and assistance from one of these agencies when it comes to drawing up your surrogacy agreement.
Regardless of whether your child is born in the UK or abroad, you will need to apply for a Parental Order in order to be recognised as your child’s legal parent. Although you cannot make the application until the child is six weeks old, you should contact a specialist lawyer at an early stage to ensure you understand the process and costs involved in the application.