Surrogacy arrangements can be a confusing , emotional and long process. We strongly advise clients to do their research and take advice as early on as possible to help them create a comprehensive surrogacy plan and budget. Choosing the jurisdiction leads to finding the surrogate and your advisors / consultants onto setting your budget and agreeing terms to then commencing the exciting journey of starting your family . We as experienced lawyers , having over 10years experience in surrogacy arrangements, have helped numerous clients in their journey and when things have gone wrong stepped in and sort a favourable outcome be it separating intended parents , surrogates making unreasonable demands , mismanaged programmes by the agents or medical complications we have experienced many scenarios that we have successfully navigated .
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[ebor_tabs type="accordion"] [ebor_tab title="I have found a surrogate, do I need a formal agreement?"] If you proceed without a surrogacy agreement, known as an informal arrangement, you as the donor or the intended parent can be in a vulnerable position. The likely scenarios that can arise giving justification to a formal process can include: the surrogate deciding to keep the baby herself; refusing to give you contact; playing an active role in the child's upbringing even though she agreed otherwise etc. A formal arrangement sets out all the agreed terms before anything has been done. Although this is not binding or legally enforceable, it will clearly set out your intentions and the family courts are showing some sympathy to these arrangements. Solicitors are not able to draft or negotiate these arrangements for you.
Once the baby is born you will have six months to apply for a Parental Order. When the Parental Order is granted, a new birth certificate will then be issued showing the two intended parents rather than the surrogate mother and you will both acquire all the rights and responsibilities for the child. [/ebor_tab] [ebor_tab title="What if we use a surrogate abroad?"]The Human Fertilisation and Embryology Act permits couples to have an arrangement with a surrogate mother overseas and it does permit you to acquire parental rights recognised in the UK. However, if you pay the surrogate more than reasonable expenses then you can expect the court to scrutinise your application to ensure no abuse of public policy takes place, before they can grant you the Parental Order. [/ebor_tab][ebor_tab title="Am I allowed to pay the surrogate mother?"] You are permitted to pay "expenses reasonably incurred", such as compensation for time off work, medical bills and living or care expenses. Anything that can be seen as simply a transactional fee can cause you issues at court in obtaining parental rights. However, recent High Court case law has challenged this and stated that the welfare of the child should take precedence before refusing a Parental Order because of what has been paid.[/ebor_tab][ebor_tab title="As a gay father can my civil partner/husband have parental rights?"] If you both follow the due process for a Parental Order and apply together, your civil partner/ husband can be recorded on the birth certificate as the other parent and will acquire full parental rights. If done correctly and within 6 months of the baby's birth, the certificate is reissued with these details.[/ebor_tab][ebor_tab title="Can I have a surrogacy arrangement if I am single?"]Sadly, even if you are a biological parent the UK can decide not to grant you a parental order and recognise you as the UK legal parent. This can cause you difficulties since the surrogate will retain her legal rights over the child in this instance. If you use a surrogate abroad you may get a birth certificate with you as named parent but sadly in the UK this is not valid and you may face succession and parental responsibility issues. You should seek specialist legal advice to ensure you are fully aware of your rights and the risks. [/ebor_tab][ebor_tab title="Is it vital that we register within 6 months of the birth?"]The six month time limit has recently been reviewed by the President of the Family Division. While reiterating that statute provided a 6 month bar to ensure people made swift applications, where there is a very good reason then there may be scope to apply outside the time. However, it remains the best position to take all possible steps to apply within the six month timeframe to avoid having to complicate your case and rely on the goodwill and case law to protect the intended parent’s rights.[/ebor_tab][ebor_tab title="Can I protect my surrogate child in my Will?"]It is very important that as intended parents you update your Wills in case anything goes wrong during the surrogacy arrangements. You should cover the payment of expenses required for the surrogate and appoint guardians in the event of your death. If you can agree this, the surrogate should have a Will appointing you as the intended parents as the baby's guardian. We would also suggest you consider updating life insurance policies. [/ebor_tab][ebor_tab title="I am not based in London, can you still help me?"] Yes, we assist families in all parts of the UK and not just London. Although we always love to meet our clients in person, this is not necessary and we can communicate with you on the phone, over Skype and other virtual platforms. We have a range of experience in conducting matters in this way and are fully geared up to provide you with the best possible service, wherever you are based. [/ebor_tab][/ebor_tabs]
[ebor_tab title="Re N (Surrogacy: Enduring Family Relationship; Child’s home) (2019) EWFC 21."]
In short the intended parents separated during the parental order application failing the criteria required . The non biological intended parent wanted joint custody and full patents rights
ACLF is extremely pleased to have successfully represented the 1st Respondent in the seminal case ,with the highly experienced barristers Ms Deirdre Fottrell Q. C. & Ms Melissa Elsworth of 1GC Family. The teamwork lead to a succinct analysis and a subtle but important change in the law, that will give greater certainty and protection for both Intended Parents and Surrogates alike.
In this case, the parties’ child was born in Canada and returned to the UK with the IPs, where they jointly applied for a Parental Order to be recognised as the legal parents of their child. The parties unfortunately separated after proceedings commenced, which meant that they faced a difficulty in meeting two particular parts of the statutory criteria for a Parental Order:
(i) Section 54(2) HFEA 2008 which states, “the applicants must be…( c) two persons who are living as partners in an enduring family relationship…”; and,
(ii) Section 54(4) HFEA 2008 which states, “At the time of the application and the making of the order (a) the child’s home must be with the applicants”.
The court was asked to confirm that although the parties separated, a child’s home could be in more than one place (as will be familiar to many family lawyers dealing with separating couples), but also confirm whether they could also be considered to have an enduring family relationship. The latter is novel but Mrs Justice Theis considered that, “ 54(2) is silent as to the need for the requirement to be linked to any particular time,” and therefore although, “the applicants must be two persons who are living as partners in an enduring family relationship…. in the absence of any other express time requirement, that requirement is satisfied in this case.”
The case may be fact specific in allowing for the protection of children to obtain a parental order despite their parent’s separating after the application has been granted, but there are clearly going to be occurrences when this matter comes to light again and when the parties may have separated prior to the application or even prior to birth and the best interests of the child and their Article 8 rights need to be protected. The above case paves the way for greater protection, but also highlights the ongoing need for urgent reform of the statute.
Surrogacy in Canada for UK parents
Canada is a country we have been working with for sometime and we have excellent relationships with the fertility clinics , agencies and lawyers. It’s becoming more popular due to it being more on a par with the UK law and due to its cost effectiveness
We herein provide a basic guide to parent /s considering an arrangement in Canada but strongly recommend you contact us for a no obligation and complimentary meeting.
Canadian surrogacy terms
Surrogacy in Canada is available to UK intended parents and it is legal. The reasons people may choose this jurisdiction is that 1. It permits the arrangement to governed by a legally binding contract ; 2. Its highly regulated ; 3. It’s got real synergy with UK law making harmonisation of the arrangements easier ; and 4. The intended parents names will appear on the birth certificate
This is not all though without restrictions and some risk of which you should be fully aware of. That legally the contract could be overturned by the court because as in the UK the birth mother only gives up her rights post birth. However , in Canada this can be done quickly and is not something we have experienced as an issue as a firm
This like the UK is heavily regulated and advice should be taken on the level of expenses you pay to your surrogate . How much you should pay us something you need to contemplate legally and then written into the legally binding contract with your surrogate. Often these should be capped and carefully planned to fall in line with UK provisions to ensure that you can , upon returning , secure your parental order.
In Canada, it's illegal to pay for the services of a surrogate mother or to purchase human sperm and eggs. Federal law allows only altruistic surrogacy in Canada, which means surrogate mothers cannot be paid more than out-of-pocket expenses.
We are often told that a benefit of Surrogacy in Canada is cost, which can be significantly lower than Agency-managed programs in the USA. However , it should also be noted Agencies are not legally permitted to professionally match surrogates with future parents. Agencies are also not legally permitted to manage the surrogate’s cycle and pregnancy for a fee.
The result is that surrogacy in Canada is possible, but often takes months to find a qualified surrogate. The entire process may be somewhat less straightforward than a US program where a commercial Agency can handle the entire process.
Canadian law is very explicit, and is regulated by Bill C-6 (Assisted Human Reproduction Act). The act explicitly places the following constraints on surrogacy in Canada:
No person shall pay consideration to a female person to be a surrogate mother, offer to pay such consideration or advertise that it will be paid.
No person shall accept consideration for arranging for the services of a surrogate mother, offer to make such an arrangement for consideration or advertise the arranging of such services.
No person shall pay consideration to another person to arrange for the services of a surrogate mother, offer to pay such consideration or advertise the payment of it.
Even though you will receive a birth certificate and passport how you bring your newborn baby home , should be part of your legal strategy.
Parental rights for intended parent/s
Despite securing the birth certificate and passport (which your Canadian lawyer should secure) for your baby upon returning to the UK there are further steps to be taken to secure your parental rights. The parentage for a child born through Canadian surrogacy is not recognised in the UK , which is why you need to apply to the court for a parental order . This is to ensure you are registered as the legal parents under UK law and have all associated rights
For detailed information on applying for a UK parental order please read here
We are surrogacy lawyers covering the City of London, Central London, Tower Hamlets, Islington, Hackney, Richmond up Thames, Kensington & Chelsea, Hammersmith & Fulham, Westminster, Camden, Harrow, Haringey, Southwark, Lambeth, Croydon, Bromley, Bexley, Havering, Redbridge, Waltham Forest, Enfield, Barnet, Hillingdon, Ealing, Hounslow, Greenwich, Lewisham, Wandsworth, Merton, Sutton, Kingston upon Thames, Barking & Dagenham, Newham and Brent.
Also we have and do handle surrogacy outside of London: Surrogacy lawyers for Wales; Cardiff & Swansea and surrounding areas. Surrogacy legal experts in Leeds, York , Manchester, Bristol, Chester, Cheshire, and Birmingham.