B P Collins’ family team advises on what you need to know about surrogacy agreements.
Are surrogacy agreements legally binding?
Surrogacy agreements in England and Wales are not binding and in rare circumstances this can lead to the surrogate changing her mind and wanting to keep the baby that she has carried ahead of the intended parents being able to make an application for a Parental Order declaring that they are the legal parents to the child.
This is very uncommon but nevertheless can a huge concern for many considering the surrogacy process.
If there is a disagreement between the surrogate and intended parents, the surrogacy agreement will be used as a persuasive instrument to illustrate to the court what the intentions of the parties were at the time that they entered into the agreement to allow the court to adjudicate on the issue.
What do surrogacy agreements cover?
Surrogacy agreements generally include the following:
(a) Full details of parties involved
(b) Conception agreements – including embryos and clinic details and any treatment considerations
(c) Decisions and commitments during the pregnancy including who will attend the scans and other antenatal appointments
(d) Agreements and medical treatment during the pregnancy
(e) Birth arrangements, including who will attend and the type of birth planned
(f) The intention that a Parental Order will be sought by the intended parents and the surrogate’s agreement to this
(g) The surrogate’s contact with the baby following the birth (if any) to manage expectations
(i) Clear guidance around expenses
(j) Life insurance for the surrogate and up to date wills for the intended parents.
What costs are involved within the surrogacy journey?
Surrogacy is not free in the UK, there are various costs involved. Commercial surrogacy is not permitted, meaning a surrogate cannot be paid for carrying the baby. The biggest expense is likely to relate to dealing with the creation and transfer of embryos at a fertility clinic. This is followed by the reasonable expenses of your surrogate related to the pregnancy. These expenses can include things like maternity clothes and travel costs. There could also be travel and accommodation costs for the intended parents, depending on where the surrogate is based and how often they plan to visit during the pregnancy.
What happens once your baby is born?
As your surrogate will be your baby’s legal mother under UK law, you will need to apply for a Parental Order through the courts after the birth, to reassign parental rights fully to you. If you are not eligible to apply for a Parental Order because, for example, neither of you are your baby’s biological parent, then you may consider applying for an adoption order to formally adopt your baby. It can take some time to apply for both orders.
B P Collins’ family team can help you navigate the surrogacy process and advise on the best options for you. For further information and advice, please email enquiries@bpcollins.co.uk or call 01753 889995.
