Exploring the option of surrogacy, by Bethan Carr, a surrogacy solicitor

Meet Bethan Carr, a surrogacy/family solicitor at Penningtons Manches Cooper (or otherwise found on Instagram at @thesurrogacysolicitor). We asked Bethan to list the questions she regularly gets asked from intended parents who are exploring the option of surrogacy to build their family. 

What is surrogacy and are there different types?

Surrogacy is when a woman carries a pregnancy and gives birth for another person/couple. There are two types of surrogacy, traditional (or straight) surrogacy and gestational (or host) surrogacy.

Traditional surrogacy is where the surrogate uses her own eggs and carries the pregnancy, whereas gestational surrogacy is where the surrogate has no biological link to the baby. In these circumstances the intended parent/s will use their eggs and/or sperm. They can use an egg donor or a sperm donor, but not both if they want to apply for a parental order. 

Is surrogacy legal in the UK?

It is legal to enter into a surrogacy arrangement in the UK but there are some restrictions, for example you can’t advertise for a surrogate and there are also some criminal offences surrounding what involvement a third-party can have.

How do I find a surrogate?

There are three main not-for-profit surrogacy organisations in the UK – these are Surrogacy UK, COTS and Brilliant Beginnings. They all work in different ways and I always suggest that intended parents take a look at their respective websites in the first instance to see what they can each offer and what feels most comfortable.

It is also worth checking out Two Dads UK who are a super lovely couple with children through surrogacy, and who are a great online resource.

Are surrogacy arrangements legally binding?

Surrogacy agreements are not legally binding in the UK – this means that intended parents and surrogates have to rely on trust when entering into an agreement.

Having said this, I always advise intended parents to put an agreement together with their surrogate at an early stage of things. While it is not legally binding, the exercise of putting one together enables you to talk through everything and have the more difficult discussions about things like expenses to make sure you are all on the same page.

It is important to be aware that a third party (like a solicitor) can’t draft or negotiate a surrogacy agreement for you, and so it is something that you will need to put together yourselves.

Who goes on the first birth certificate?

As surrogacy agreements are not legally binding, UK law on parenthood applies – this is regardless of intention, biology and what country the child is born in. This means the surrogate, as the woman who gives birth, is recognised as the child’s legal mother in the first instance and will be recorded as such on the child’s first birth certificate. 

If the surrogate is married, her husband will be recognised as the child’s legal father and will also go on the birth certificate. If she is unmarried, then the standard position is that the biological father will usually be recognised as the legal father.

What is a parental order?

The way of resolving this position is by applying for a parental order – this is the UK legal solution in surrogacy cases.

A parental order is an order from the UK Family Court which extinguishes the status of the surrogate and her spouse, if married, and reassigns their parentage to the intended parent/s. A new birth certificate will be issued recording the correct position.

There are a number of criteria to fulfil:

The child must be conceived through artificial insemination and carried by a surrogate.

At least one of the intended parents must have a biological link to the child (or in the case of a single applicant, they must be the child’s biological parent).

The intended parents must be a couple, either married, in a civil partnership or living in an enduring family relationship. There is also now the option to apply as a single person since the law changed in January 2019.

Intended parent/s must apply within 6 months of the birth (in practice, there is some flexibility with this but it very much depends on the circumstances).

The child must have their home with the intended parent/s and the intended parent (or at least one of the intended parents if applying as a couple) should be domiciled in a part of the UK, Channel Islands or the Isle of Man.

The intended parent/s must be over the age of 18.

The surrogate (and if she is married, her spouse) must consent to the making of a parental order fully, freely and unconditionally, and not less than six weeks after the birth.

No more than reasonable expenses must have been paid to the surrogate (or the court must be prepared to authorise the payments retrospectively). 

Generally applications take between 6-12 months to be dealt with by the Family Court, and you can usually expect to attend two court hearings. 

Can I pay a surrogate?

The short answer is yes. However, in relation to a parental order the law says that you should only pay for her reasonable expenses. Helpfully, reasonable expenses has never been defined in law and as a result a grey area has developed where payments of £12,000 to £18,000 are regularly accepted by the Court as being for a surrogates reasonable expenses. Receipts are rarely requested, but you will need to show exactly what was paid, so it is a good idea to keep clear records and be completely upfront and honest about all payments.

It is important to mention that the court does have the power to authorise payments to a surrogate if they are for more than reasonable expenses, and this is often relevant in international surrogacy cases.

What if a surrogate doesn’t agree?

This is a worry that intended parents often have, and I always tell them that this is fortunately very rare where care and attention has been put into setting up the surrogacy agreement. However, if the worst were to happen, it is important to be aware that unfortunately a parental order can’t be made if a surrogate does not consent.

Having said this, should this scenario occur, a different application could be made to the Family Court, who will ultimately decide what is in the best interests of the child, and while it can’t transfer parentage, the court can determine with whom the child is to live and with whom the child is to spend time with.

What about my overseas options?

Sadly there is a real shortage of surrogates in the UK, which means that intended parent/s can often be left waiting for quite some time to find a surrogate who is willing to help them. It is for this reason that people often start to consider their international options and I spend a lot of time advising people on the different options available to them. The most common destinations for surrogacy are the US, Canada, Ukraine and Georgia. Each destination is quite different and brings different considerations for intended parent/s. Wherever you go, the key is to do your homework, understand the legal framework in that country as well as how you are going to travel home with your baby and ensuring that everything is being done safely and ethically. 

The most important thing for intended parent/s to be aware of is that even if you are recognised as a legal parent in the country your baby is born in, this won’t be recognised under UK law and so you will still need to apply for a parental order to ensure your status as a family is secure. 

Every surrogacy journey is different and there are often various nuances, legal issues and practical elements for intended parent/s to consider. If you do have any questions at all, please do not hesitate to get in touch either via email at bethan.carr@penningtonslaw.co.uk or on Instagram, you will find me at @thesurrogacysolicitor.

 

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