With surrogacy in the UK on the rise, it's a wonderful option that a lot of people choose to take to have a family, but there's a lot to know about the process and questions to ask about surrogacy and how it all works.
Surrogacy is becoming a more popular option where, for a lot of reasons, a biological pregnancy is not possible.
In 2020, the number of parental orders (which transfer legal parentage from a surrogate to the baby’s intended parents) rose from 117 in 2011 to 413, according to a report by Kent Law School and My Surrogacy Journey, and there is no evidence to suggest rates are slowing down.
There's also an increasing number of high-profile celebrities and individuals such as Elon Musk, Kim Kardashian and Kanye West, and Naomi Campbell (to name but a few) sharing their surrogacy journey. There are also television and radio programmes having surrogacy as part of their storylines - which only serves to further normalise and raise awareness of surrogacy.
In the majority of cases, surrogacy provides couples and individuals with the opportunity to expand their family. However, complex issues can sometimes arise during your surrogacy journey that can be difficult to navigate.
Susan J Williams, Partner and surrogacy law specialist at Ince outlines the legal and financial surrogacy process; what it entails, pitfalls to avoid and how the process may change following a Law Commission consultation planned for later this year.
What is surrogacy?
Surrogacy occurs when an individual or a couple, whether a heterosexual or same-sex couple, nominate another woman to give birth to a child on their behalf. Surrogacy in the UK is a legal route for couples who wish to expand their family; however, you must follow certain legal requirements during the surrogacy process.
The person carrying the baby is known as the surrogate and the couple who wish to be the child’s parents are known as the intended parents.
There are two types of surrogacy: the first is where the surrogate uses her own eggs and the sperm from the intended father, known as Traditional Surrogacy; and the second is where the egg from the intended mother is used, known as Gestational Surrogacy.
Finding a surrogate can be daunting. Some intended parents turn to family members or friends to be a surrogate. Alternatively, there are surrogacy agencies who are able to help find a surrogate and assist with the process during the pregnancy and after the child has been born.
How do you start the legal process for having a child via a surrogate?
Once the baby is born, the surrogate mother automatically acquires parental responsibility; regardless of whether she is carrying her own or one of the intended parent’s eggs. If the surrogate mother is married, her husband is also considered as the baby’s father.
The intended parents will need to apply to the Court for a Parental Order to legally become the child’s parents and extinguish any rights the surrogate has regarding the child.
Why should you set out your arrangements in a surrogacy agreement?
Surrogacy in the UK is legal, but it is prohibited to pay a surrogate. However, the intended parents will have to pay for the surrogate’s reasonable expenses, such as transport costs for appointments.
Once you have reached an agreement with a surrogate mother, you should each obtain independent legal advice for the arrangements to be drafted into a formal agreement. Although not a legally binding document, a surrogacy agreement sets out details of how the arrangement will work, and outlines the parties’ various commitments to the process.
For a surrogacy arrangement to have the best chance of success, all parties should comply and feel confident in the agreement, with the freedom to seek guidance from surrogacy agencies or legal advisors if needed.
Likewise, if you decide to use a relative as your surrogate, a surrogacy agreement will help to set clear boundaries for their relationship with the child for the future, avoiding any disagreements and disputes going forward. These boundaries can include how the child will refer to the family member, their access to the child and any other expectations that the surrogate may have and need addressing.
A surrogacy agreement can also cover reasonable expenses that can be incurred, what will happen at the birth of the child, what decisions will need to be made through the pregnancy, who will attend medical appointments and who will make decisions regarding the health of the baby or the surrogate.
What Court Orders do you need to become your surrogate baby’s parents?
There are two orders for surrogacy in the UK which are used by the Court: Parental Orders, where one of the intended parents are biologically related to the child; and the lesser used Adoption Orders, where neither intended parent is genetically linked to the child.
Either one or both of the intended parents (known as the Applicant) should apply for a Parental Order within six months of the child’s birth. Following a successful Court Order, the intended parents acquire full responsibility for the child and the surrogate loses any legal rights over the child.
If the baby’s biological father is not married to the surrogate, he can only acquire parental responsibility once a Parental Order is made by the Court. However, if the surrogate mother is unmarried, the biological father will be treated as the legal father. Nevertheless, once again this would require an Order to acquire parental responsibility.
Likewise, non-biological, intended parents also do not acquire legal parenthood or parental responsibility until the relevant order is made.
The requirements around applying for a Parental Order can be complicated, so ensure that legal advice is taken from UK surrogacy specialists before making the application to the Court.
It can be a long process, during which time the surrogate retains parental responsibility for the child.
Are there any common pitfalls to avoid during the surrogacy process?
Advertising for a surrogate
Do not advertise that you are looking for a surrogate, as it is a criminal offence to do so.
Gaining the right consent from the surrogate mother
For the consent to be valid, it must not be given within the first six weeks of birth. If the surrogate mother is married, you must also gain consent from her husband or wife. Without that consent, the application for a Parental Order will fail.
Paying your surrogate
Do not enter a commercial arrangement with, or pay your surrogate, other than reasonable expenses. Take detailed notes on financial arrangements between the surrogate and intended parents.
By law, you cannot pay a surrogate to carry the baby. However, before and after the baby is born, you can pay reasonable expenses, such as medical, travel, clothing and loss of earnings during and after pregnancy.
Keep a clear record of any expenses; the Court will scrutinise those payments when considering an application by intended parents for a Parental Order. These types of issues can be set out clearly in a surrogacy agreement.
Not getting a Parental Order
The surrogate will be the legal guardian of the baby until a Parental Order is made, so it is important to remember to do this as soon as you can.
Not seeking specialist advice
Although you can enter into a surrogacy arrangement independently without any advice, it is strongly recommended to seek support from a surrogacy not-for-profit organisation and solicitor to ensure a smooth process for you, your surrogate and the baby.
Not doing the maths
Intended parents should be aware of the financial implications of surrogacy and the costs and expenses that they will be responsible for, to ensure that it's affordable alongside their own bills.
Seeking a surrogate abroad - what additional considerations do you need to make?
Many intended parents look abroad for a surrogate rather than continuing with a surrogacy in the UK. However, international surrogacy often comes with long, complex processes to go through.
Weighing up the advantages and disadvantages of a surrogacy in the UK arrangement verses an international surrogacy arrangement is an important first step. Nevertheless, specialist legal advice from both the UK and the surrogate’s home country is essential before starting the process.
The countries most frequently used are USA, Canada, and previously Ukraine.
The surrogate is the legal mother from birth. A Parental Order transferring legal rights to the intended parents can only be made in the UK and the child must be living in the UK at the time of the application.
Therefore, you will need to arrange to register the child as a British citizen and obtain the necessary travel documents, such as a passport (if there is a biological relationship to the child) or an entry clearance visa (if there is no biological link) to gain entry to the UK.
It can take time to get all the requirements in place, during which time the intended parents will be living in the country the child was born, so their own immigration requirements for staying in the foreign country has to be in mind.
It is important that the intended parents factor in the additional costs where there is a foreign surrogacy arrangement.
How will the surrogacy process change?
In spring 2023 the Law Commission reported their recommendations to change some of the “archaic” parts of the relevant surrogacy legislation. Time has passed since the early legislation in the 1980s and the approach to surrogacy arrangements needs to change to keep up with the ever-changing needs of the surrogates, intended parents, the child and the Parental Order process.
The following reforms around surrogacy in the UK that are to be overhauled and implemented into law:
• A new pathway to legal parenthood: for domestic surrogacy arrangements, the intended parents would become legal parents after birth, rather than waiting months for a parental order. There will also be safeguarding such as counselling and independent legal advice.
• A regulatory route overseen by non-profit surrogacy organisations: individual surrogacy agreements will be overseen by non-profit organisations and regulated by HFEA.
• Reforms to parental orders: Some intended parents will still need to obtain a parental order through the courts, but through a recommended reform it would allow the court to make a parental order when the surrogate does not consent, provided the child's welfare requires this. This would align surrogacy law's with other family law.
• A new surrogacy register: this will give greater transparency to children born through surrogacy, having the opportunity to trace their origins when they're older.
• New rules on payments: reforms will provide clarity on what payments can be made by the intended parents. The payment rules will ensure the surrogate is not at a loss of earnings throughout the surrogacy and also protects against the risk of exploitation.
• International surrogacy agreements: while there is no changes on international surrogacy agreements, but with the reforms it is hoped that domestic surrogacy arrangements are a more attractive option.
Stephanie Anthony is the Deputy Digital Editor at Mother&Baby and auntie to four aged 7 to 2 months old. With a particular interest in health, she loves discovering products that make parent’s lives easier.