Surrogacy, who needs a lawyer and why?

Introduction

Surrogacy is legal in the UK and those engaging in it are free to make arrangements between themselves. However, there are rules and specific processes that parties involved in surrogacy arrangements must be aware of and adhere to.

We would encourage anyonetaking their first steps on the surrogacy journey to do as much research as possible at the outset. There are many moving parts and it can seem daunting knowing where to start. The dangers of misinformation or of following advice that is not appropriate to your specific situation could cause problems down the line, which can be avoided by taking early bespoke advice.

As fertility and surrogacy solicitors, who have practised in this field for over a decade, we have seen a multitude of different arrangements in the UK and internationally, acting for straight, LGBT and single parent families. It is our experience that early legal advice prevents mistakes being made but also puts individuals in a much better position to deal with some of the unforeseen issues that can arise in surrogacy.

Who needs advice?

All parties involved in the arrangement should seek legal advice. The surrogate, and their partner if they have one, should seek independent legal advice from the intended parents.

Surrogacy contracts are not legally enforceable. It is still advisable to put the agreement in writing,but solicitors cannot arrange, negotiate or advise on a surrogacy contract and it is against the law for any third party to do so for payment. Therefore, it is important that everyone understands the legal requirements prior toentering such arrangements. Additionally, it will be the responsibility of the intended parents, post birth, to obtain a Parental Order, having obtained the surrogate’s consent.

Why do you need legal advice?

Parental Orders

A ParentalOrder is theprocess by which intended parents become the legal parents of a child born through surrogacy. In the UK,the legal mother is the woman who gives birth to a child, regardless of any genetic link. Additionally, if the surrogate is married orin a civil partnership, their partner will be the other legal parent.In order to transfer legal parenthood to the intended parents, an application must be made to the family courts to obtain aParental Order.

There are certain requirements to making a Parental Order andit is vital that intended parents check that they can meet all the eligibility criteria before any transfer of embryo attempts are made. Parental Orders can only be made post birth;we have seen intended parents realise far too late, when the surrogate is already pregnant or even after their child is born, that they do not meet the eligibility criteria. Whilst we have been able to assist clients in making alternative legal arrangements for their child, it is not a desriable situation to be in.

Without a Parental Order the legal relationship between the intended parents and their child does not exist and therefore neither intended parent has Parental Responsibility for the child and are therefore unable to make any major decisions on behalf of the child. At this early stage of life, this mostly affects the ability of the intended parents to make medical decisions for the child. As the legal mother, only the surrogate (and her partner) can make those decisions for the chid. Obtaining a Parental Order is therefore vital. The effects of not making an application for or not being granted a Parental Order can follow a child throughout their life and can be as far reaching as complications obtaining a British passport or preventing inheritance rights.

International Surrogacy

It is not uncommon for individuals to seek surrogacy arrangements abroad. In the UK, regardless of what arrangements have been made abroad, the surrogate is still considered the legal mother and a Parental Order will still need to be applied for. International surrogacy involves unique, cross-border issues of family law, immigration and nationality. There is a heightened need for bespoke legal advice in this situation.

Other considerations

All parties should have their wills updated and obtain insurance to fully protect both the surrogate and the child during the arrangement. Also, nationality and applications for British passports will have to be considered when engaging in international surrogacy and again, this advice should be taken in the early stages.

Surrogacy arrangements can work well, and the court process is usually straightforward. However, the current legal framework in the UK remains an altruistic model, reliant on trust on both sides. It is not unheard of for surrogates or intended parents to change their minds, leaving the child at the centre of a dispute. We have expertise in dealing with straightforward as well as complicated surrogacy journeys and work tirelessly to ensure that the best outcome is achieved.