At its core, surrogacy is an arrangement where a woman carries and gives birth to a baby for a couple or an individual who are unable to conceive or carry a child themselves, but the process involves careful planning, clear agreements, and legal safeguards to protect everyone involved. B P Collins’ family team provides an overview.
The couple or individuals who choose to become parents by way of surrogacy are known as the “intended parent(s)”. At least one of the intended parents must be a genetic parent of the child born to them via surrogacy. To be a genetic parent of the child, the child must be conceived with either the sperm and/or the eggs of the intended parent(s).
A surrogate is the preferred term for a woman who is willing to help the intended parents to create their family by carrying a child for them. A surrogate may not have a genetic relationship to the child that she carries.
What is a surrogacy agreement?
When a couple or individual decide to use a surrogate, it is commonplace to enter into a surrogacy agreement. Surrogacy agreements are not legally binding but are used as a statement of intention about the how the surrogacy arrangement will work and the commitment that each party is making in advance of the surrogacy commencing.
Surrogacy organisations agree that it is fundamentally important to have a written agreement in order to ensure there is effective communication and a mutual understanding between the intended parent(s) and the surrogate. The agreement should be discussed thoroughly in advance and all parties should feel confident about the details before entering into this.
An agreement will typically include reference to the following:-
- Personal information of all the parties involved for example their names, addressed and marital status of the intended parent(s) and the surrogate;
- Pre-conception agreements. For example, agreeing the details of the communication which will occur between the intended parent(s) and the surrogate before, during and after the pregnancy, and who will be responsible for the decision making during the pregnancy and after the birth.
- Conception arrangements with information on clinics, and how the embryo will be created;
- Pregnancy arrangements, such as who will be attending appointments and scans;
- Birth arrangements, so who will be present at the birth and what plans there are for this;
- Post birth arrangements which will involve the surrogates’ contact with the child and intended parents, and how the relationship between the surrogate and child will be managed, to include communication expectations in the future;
- Legal matters, which will specify the process of obtaining the parental order;
- Financial matters, which will detail how and when the surrogates expenses will be covered and paid;
- Contingency plans; what happens in situations where there is a miscarriage or still birth, and any conflict resolution mechanisms, or what happens if the relationship has broken down.
Thinking about surrogacy? B P Collins’ family team can help. Get in touch today by email or by phone on 01753 889995.
Is surrogacy legal in the UK?
Surrogacy is legal in the UK but there are some restrictions:- It is a criminal offence:
- To advertise that you are looking for a surrogate, or that you are looking to act as a surrogate.
- For a third-party organisation to be paid for organising a surrogacy relationship, but there are exemptions for non-profit organisations.
- For organisations to match or broker a surrogacy agreement in the UK.
Intended parents and surrogates should also be aware that a surrogacy agreement is not legally enforceable if either the surrogate or intended parent(s) do not follow the agreement. They are used more as a statement of intention.
Is surrogacy free in the UK?
Surrogacy is not free in the UK, but commercial surrogacy is not permitted, meaning a surrogate cannot be paid for carrying the baby. Instead, intended parents are expected to cover the surrogate’s reasonable expenses related to the pregnancy. These expenses can include things like maternity clothes, travel costs, and loss of earnings.
Is surrogacy a good option?
There are legal considerations which must be looked at when considering surrogacy, as well as considering the potential risks that can occur in any pregnancy. Intended parents and surrogate should seek legal advice at the earliest possible stage before entering into a surrogacy. A successful surrogacy would allow people to become parents where this has not been biologically possible for them.
What is gestational surrogacy?
Gestational (also known as host) surrogacy is when the surrogate doesn’t provide her own egg to achieve the pregnancy. In such pregnancies, embryos are created in vitro and transferred into the uterus of the surrogate using:
- eggs of the intended mother fertilised with sperm of the intended father or donor or;
- eggs of a donor fertilised with sperm of the intended father, where the intended mother cannot use her own eggs or the intended parents are a same-sex male couple
Why do people use surrogacy?
People use surrogacy when they have been struggling to conceive or carry a child themselves. Additionally, people within LGBTQ+ relationships, or who are single, will often use surrogacy as an option. People can also use surrogacy out of personal choice, or due to medical reasons.
Are surrogacy contracts enforceable?
Surrogacy agreements, even if they are detailed, signed and both parties having sought legal advice, are not legally binding, or enforceable. If a dispute ever arose, the Court would consider the child’s welfare as a priority, which could mean disregarding the agreement entirely.
For further advice and information, please contact B P Collins’ family team at enquiries@bpcollins.co.uk or call 01753 889995.
