You, Surrogacy
& Ince, in any case

There are two types of surrogacy that you can choose from, depending on your individual circumstances:

• Gestational surrogacy - where the surrogate mother carrying the baby is also the baby’s biological mother. The baby will either be related to the father or a sperm donor.
   
• Traditional surrogacy – where the surrogate mother carrying the baby is not biologically related to the baby. In traditional surrogacy, the embryo carried by the surrogate can be created from:
   
• The biological mother and father;
• The biological mother and sperm donor; or
• A donor egg and genetic father’s sperm.

Both surrogacy processes can occur in the UK and overseas.

Although the process is largely the same, there are some differences to the process, particularly if you are a single parent or same-sex parents. We can advise on your options and help you to make the best decision for your family.  

It is against the law in England and Wales to pay a surrogate for carrying a baby. However, payment of reasonable expenses is permitted, including travel, medical treatments or supplies, loss of earnings for the surrogate, if the surrogate has a spouse or partner, their loss of earnings; maternity clothing costs and other incidental expenses.

Couples may fall into the trap of wanting to pay for such an invaluable sacrifice by the surrogate, but ensure you take note of any expenses that are paid, and why, to avoid any legal pitfalls.

The expenses considered as reasonable are not set in stone but there are guidelines.

Once the baby is born, the surrogate mother automatically acquires parental responsibility; regardless of whether she is carrying her own or one of the intended parent’s eggs.

If the surrogate mother is married, her husband is also considered to be the baby’s father. In the past, there have been instances where the surrogate’s husband has not given their consent, so it is important to obtain this at the outset of any arrangement.

If the baby’s biological father is not married to the surrogate, he can only acquire parental responsibility once an Order is made by the court. However, if the surrogate mother is unmarried, the biological father will be treated as the legal father. Nevertheless, once again this would require an Order to acquire parental responsibility.

Likewise, non-biological, intended parents also do not acquire legal parenthood or parental responsibility until the relevant order is made.

There are two orders; Parental Orders, which are the most frequently used; and the lesser used Adoption Orders.

Either one or both of the intended parents (known as the Applicant) will apply for a Parental Order. However, it is against the law to apply for a Parental Order if there is both a donor egg and donor sperm.

As a result of the Order being made, the intended parents acquire full responsibility for the child.

However, the rules are different depending if either one or both applicants are applying, so ensure that you take legal advice from surrogacy specialists before making the application.

There are physical and psychological demands on the surrogate, which can pose potential risks to both their and the baby’s health.

Carrying a baby for someone else can be emotionally challenging, especially when the intended parents are close relatives, therefore the surrogate may need to engage with fertility counsellors. There is also the risk the surrogate could change her mind – which could cause friction between family members.

If you do decide to use a relative as your surrogate, ensure you set clear boundaries for their relationship with the child for the future. This includes how the child will refer to the family member, their access to the child and any other expectations that the surrogate may have that need addressing. Having a conversation but also considering entering into a surrogacy arrangement is the way forward.

• Advertising for a surrogate - do not advertise that you are looking for a surrogate – it is a criminal offence to do so.
   
• Paying your surrogate - do not enter into a commercial arrangement with, or pay your surrogate, other than reasonable medical, travel and other related expenses.
   
• Not getting a Parental Order - the surrogate will be the legal guardian of the baby until a Parental Order is made in the intended parent’s name.
   
• Not seeking specialist advice - although you can enter into a surrogacy arrangement independently without any advice, it is strongly recommended to seek support from a surrogacy not for profit organisation and solicitor to ensure a smooth process for you, your surrogate and the baby.
   
• Not doing the maths - intended parents should be aware of the financial implications of surrogacy and the expenses that they will be responsible for.

A surrogacy agreement can be drawn up for the surrogate, their spouse/partner (if applicable) and the intended parents.

Although it is not a legally binding document, a surrogacy agreement sets out details of how the arrangement will work and outlines the parties’ various commitments to the process. For a surrogacy arrangement to have the best chance of success, all parties should comply and feel confident in the agreement, with the freedom to seek guidance from surrogacy agencies or legal advisors if needed.

The surrogacy agreement should, as far as possible: identify the parties involved; any preconception arrangements; expected, reasonable expenses and how they will be paid; pregnancy arrangements, including attending appointments; post-birth arrangements; legal arrangements; and any information that will be given to the child in the future.

Once an agreement is reached, the parties should each obtain independent legal advice to write up the arrangements. Each of the parties should then sign the agreement and keep a copy for their records.

Although it is rare, a surrogate may change her mind and wish to keep the baby.

In this case, there are a number of things to consider.

• Is the surrogate married or in a civil partnership? If she is married, the husband is automatically considered the baby’s legal father.
• Is the surrogate single? If the biological father is named on the birth certificate, he will acquire parental responsibility.
• If the surrogate has a long-term partner, they do not become the baby’s legal parent.

In the event that there is dispute and the surrogate wishes to keep the baby, the intended parents may apply to the court for a Child Arrangements Order. When considering such an application, the court will consider the welfare checklist contained in the Children Act 1989.

In particular, the most relevant considerations would include: the child’s physical, emotional and educational needs, the ability of the surrogate and intended parents to meet the child’s needs, and any relevant characteristics of the child, such as age, background and sex.

Nevertheless, time is of the essence, as if the intended parents made an application for a parental order six weeks after the birth of the baby without the surrogate’s consent, the application will fail.

There are some things you need to consider before you embark on this selfless journey:

• Contacting a registered, specialist surrogacy agency - there are a few registered agencies and it is safer to register with them, than to be a surrogate privately.
   
• Staying fit and healthy – before becoming a surrogate, there are health requirements, from having a BMI of between 19 and 30 to being a non-smoker, and being fully vaccinated with common immunisations, including Covid-19.
   
• Preparing to undergo fertility treatment such as IVF and IUI.
   
• Getting to know the intended parents - once you have been matched with intended parents, arrange to meet with them regularly throughout the process, and ask them to sign a surrogacy agreement.

In the UK, you cannot be paid for being a surrogate. However, you can agree and receive reasonable expenses, subject to guidelines.

These reasonable expenses often include: clothes, reimbursement for any loss of earnings for yourself and your partner/spouse (if applicable); travel expenses; and any incidental expenses either before, during and/or after pregnancy.

It is essential that a list of these expenses is agreed with the intended parents, and the parties receive a copy for their records. Then, the court will consider these expenses during the Parental Order application process.

Just as if you were giving birth to your own child, a surrogate has the right to 52 weeks of paid maternity leave and the right to return to their job after the end of that leave.