Surrogacy is an increasingly popular fertility treatment option, giving hope to couples wanting a family. But UK law restricts what you can do, and requires a court process to make you the legal parents of your child.
Leading fertility lawyers Louisa Ghevaert and Natalie Gamble, who have advised hundreds of surrogacy families, guide us through the maze…
Is surrogacy legal?
Surrogacy is legal in the UK, but there are restrictions. It is a criminal offence for anyone to arrange surrogacy for profit, which in practice means that fertility clinics cannot help you find a surrogate mother. It is also a criminal offence to advertise for a surrogate mother or to advertise that you are willing to be a surrogate. Surrogacy contracts are allowed, but only as informal agreements – they are not legally binding and professionals (including lawyers) are barred from preparing them.
Since your surrogate will be the legal mother of your child at birth (and if she is married her husband will be the legal father), you also need to take steps to become your child’s legal parents after he or she is born. The court process is called a ‘parental order’, and it triggers the reissue of your child’s birth certificate. While it’s not illegal for anyone to conceive a child through surrogacy, not everyone can apply for this court order, so it’s important to know where you stand.
This is where there has been a recent legal sea change. A new law came into force on April 6 of this year allowing unmarried and same-sex couples to apply for a parental order and be named on their child’s reissued birth certificate (previously only married couples could apply). For the first time in English legal history, this allows a surrogate child’s birth certificate to record two fathers or two mothers. While this change is very welcome, single men and women (whether straight, lesbian or gay) remain excluded. This legal bar reflects government concerns about the sensitivities surrounding surrogacy and yet it flies in the face of modern life and the wealth of single parents out there following donor conception, adoption or divorce.
Types of surrogacy
There are two types of surrogacy. A gestational surrogate carries a pregnancy but has no biological connection with the child, who might be the biological child of the intended parents or conceived with either donated eggs or sperm. A straight surrogate donates her egg as well and is, therefore, the biological mother of the child she carries. Some intended parents prefer a gestational arrangement, feeling that this carries less risk that their surrogate will bond with the baby and won’t hand him or her over at birth. For others in need of donated eggs, including gay couples, a straight surrogacy arrangement can be attractive, and may not even require IVF treatment.
What happens if our surrogate changes her mind?
Surrogacy arrangements are unenforceable in the UK, which means that you rely on your surrogate mother to hand over your baby and to agree to your parental order being made. Although parents are understandably worried about what might happen if things went wrong, changes of heart are in fact much rarer than many people think, and although a surrogacy contract cannot be enforced per se, legal remedies are available if the court considers this in your child’s best interests.
How do I find a surrogate?
For those who do not have a friend or family member willing to volunteer as your surrogate, many intended parents join one of the UK’s not for profit surrogacy organisations, the largest and most established of which are Surrogacy UK and COTS.
Should I go abroad?
You only have to spend a few minutes on Google to find overseas clinics and agencies offering surrogacy. With all the legal restrictions in the UK, the draw of an easy professional service (together with wider availability of donated eggs or sperm and an enforceable surrogacy arrangement) is easy to understand.
But beware: UK law will not automatically recognise you as the parents just because you are named as such on a foreign birth certificate, and you will still need to comply with UK law, as well as navigating additional hurdles relating to citizenship, nationality and UK Border Control. Cross border surrogacy arrangements raise complex legal and logistical issues and, as is often reiterated by the High Court, anybody contemplating international surrogacy should seek expert legal advice.
How much should I pay?
UK law expects you to reimburse your surrogate for her reasonable pregnancy-related expenses and no more. The law is deliberately vague about how much and will scrutinise the amount paid to a surrogate carefully. If the court thinks you have paid more than reasonable expenses, which is likely with a foreign arrangement, the legal process becomes difficult since the court has to weigh up the best interests of your child against wider public policy against commercial surrogacy.
Overall, recent changes have improved surrogacy law. There is, however, still work to be done in paving the way for single men and women to become legal parents in the UK, and in grappling with the difficult realities posed by modern globalised fertility treatment.