Let’s Talk About Surrogacy

Posted:24th June 2020

This week is Pride Week. Jo Grey, a solicitor in our Family law team talks us through the essentials any LGBT couples or singles need to know if they’re thinking of starting a family through surrogacy.

What is Surrogacy?

Surrogacy is the process by which a couple or a single person (known as Intended Parents or IP’s) have a baby through a woman (the surrogate) who goes through with a pregnancy for them before giving up the child and her parental rights when the baby is born.

For lots of reasons it is becoming a more common option for LGBT couples and singles when they want to start a family. Surrogacy UK (www.surrogacyuk.org/faqs/) estimate that 47.7% of couples who undertake surrogacy with their help are in a same sex relationship.

There are a number of initial important decisions to make including your preferred method of surrogacy. There are two types – straight surrogacy (also called traditional surrogacy) or host surrogacy (also known as gestational surrogacy).

In straight surrogacy, the surrogate uses their egg and the semen of the intended father and the insemination can take place anywhere the parties feel comfortable. In host surrogacy, this takes place at an IVF clinic. Embryos (or blastocysts) are made from own or donor eggs and are then placed in the surrogate’s womb.

In England and Wales, there are complicated legal rules governing the parental status of those involved in a potential surrogacy arrangement. In every situation, the surrogate will always have the legal status of mother when the baby is born. If she is married (or in a civil partnership), her spouse or partner will be the baby’s other parent. If the surrogate is unmarried then the baby’s biological father is normally classed as the legal father. The IP’s only acquire their parental status through the making of parental orders or adoption.

How do I go about finding a surrogate?

Depending on whether it’s in England and Wales or abroad, the rules and the law are different. In many legal jurisdictions, surrogacy is essentially a commercial transaction between parties and there are agencies, legal and medical teams who work together to provide a service to the IP’s and the surrogate. Because of this, lots of UK couples and singles choose to use an international surrogate but whilst it may appear an attractive and somewhat simpler option, it is legally very complex and not without significant risk.

In England and Wales, surrogacy is legal but the law surrounding surrogacy is very strict and irrespective of where a baby born to a surrogate is conceived and delivered, English law prevails as far as the baby is concerned.

Couples in England and Wales are restricted as to how they can go about undertaking a surrogacy arrangement. They can’t advertise for a surrogate nor can they pay a surrogate anything more than essential expenses to take part in the arrangement (and for which there are strict criteria and limits). Reasonable expenses can be high with estimates of £20,000 in a straight surrogacy and £30,000 in a host surrogacy.

So what happens when the baby is born?

Once the surrogate has delivered the baby, the IP’s have six months to apply for a parental order.

This is an order which does a number of things – it removes the parental rights of the surrogate (and her spouse/CP) and confers them on the IP’s. It also provides the baby with a new birth certificate naming the IP’s as parents.

Getting a parental order is really an essential part of any surrogacy arrangement as without it, the surrogate and her spouse or civil partner will retain their parental rights. Parental rights can also be obtained through adoption. If the surrogate, their spouse/CP or the IP’s dispute legal parentage then the courts will decide based on what is in the baby’s best interests. It’s important for IP’s to note that a surrogacy agreement cannot be legally enforced in England and Wales.

There are strict criteria to obtain a parental order including the applicant (or one joint applicant) must be genetically related to the baby (through egg or sperm donation), a couple must be married, in a civil partnership or living together, they must reside permanently in England and Wales and of legal age, the baby must live with them, the surrogate and spouse must give consent and have only been paid reasonable expenses and the application brought within 6 months of birth.

How do I apply?

There is a £215 court issue fee and an application for a parental order (C51) must be completed and sent to the court with the baby’s birth certificate. On receipt, the court will set a hearing date and issue form C52 which must be given to the surrogate and anyone else who has parental responsibility. They must then agree to the order being made by filling in form A101A.

Where an international surrogate has been used, it is important to ensure that the legalities and formalities of England and Wales and that country are complied with. Both IP’s must live in the UK to be able to apply for a parental order and if the baby is not a UK national, they will need a visa to enter the country until the court process has been completed and an order made.

Expert legal advice in each relevant jurisdiction before agreeing to any arrangement is essential. The Human Fertilisation and Embryology Authority are also a useful resource and provide assistance and signposting.

Increasingly couples and potential surrogates are also choosing to undertake counselling before entering into a surrogacy agreement to ensure that they iron out any possible issues before irreversible steps are taken.

If you’re thinking of starting your surrogacy journey we offer a free initial appointment intended to provide an overview of the law and how it might relate to your circumstances. We can also signpost you to useful organisations who can offer invaluable support and information as you start your journey to become parents.

Thanks to my colleague Michael Costelloe. Michael and his husband Stewart are currently taking steps to start their family and provided some really useful first hand information for this blog.