Surrogacy Agreements - 6 Key Facts

 When a couple are unable to conceive naturally many consider surrogacy as a way of having children of their own. Surrogacy is an extremely emotional journey in itself and is complicated by an intricate legal framework that is difficult to navigate and one that is often misunderstood.

1. What is surrogacy?
Surrogacy is a way for couples who are unable to conceive children naturally to have children by enlisting the help of another woman to carry their child. Generally speaking there are two types of surrogacy:

• Using the egg of the surrogate mother with the sperm of the intended father (‘straight surrogacy’); and;
• Using the egg of the intended mother (or a donor) with the sperm of the intended father (‘host surrogacy’).

Yes. A common misunderstanding is that surrogacy agreements in the UK are illegal, but this is not the case at all.

Only commercial surrogacy agreements are unlawful in this country under the Surrogacy Arrangements Act (1985). This is a situation where a couple pays a woman a sum of money specifically to have a child for them. Paying a surrogate mother money to have a child is not a criminal offence, but when a family court judge is deciding whether to make a parental order (see point 6 below) they must scrutinise and authorise any payments before making an order.

This does not mean that payments cannot be made to the surrogate by the intended parents. Under the Surrogacy Arrangements Act (1985) payments can be made to the surrogate mother to cover her ‘reasonable expenses’. Expenses payments during the pregnancy are therefore permitted under the act and, as there is no legal definition of ‘reasonable expenses’ the courts tend to take a fairly relaxed approach to this.

It is however a criminal offence in the UK to advertise that you are seeking a surrogate mother or that you are willing to act as a surrogate mother. Additionally any third party who arranges a surrogacy agreement in return for payment commits an offence under the act. Anyone committing these offences will be liable to imprisonment.

3. What is a surrogacy agreement?
A surrogacy agreement is the actual agreement between the intended parents and the surrogate mother that she will carry the child to birth and then hand the child over to the intended parents.

There is no requirement for a surrogacy agreement to be in writing, however many intended parents find it comforting to properly record the agreement and it does assist in defining parameters and managing expectations for all parties involved. The agreement itself can be as detailed as the parties wish, but it is usually sensible to record any payments made to the surrogate.

It can also assist to detail how much involvement both parties intend the surrogate to have in the child’s life once it is born. Usually the intention of the agreement is that the surrogate will have no involvement in the child’s life at all, however others provide for regular updates on the child’s life by way of letters and photographs.

4. Can I enforce a surrogacy agreement if the surrogate changes their mind?
No. In the UK a surrogacy agreement is not enforceable and a surrogate is legally entitled to change her mind even if the child is not genetically hers.

Any agreement with the intended parents is not enforceable in the same way as a contract and there is no right for the intended parents to reclaim any monies paid to the surrogated for expenses. Equally, if the intended parents change their minds then the surrogate will remain the legal parent of the child regardless of whether they want to be or not.

If a surrogate or intended parent does change their mind then the family court can resolve the matter, and any decision made by the court will be on the basis of what is in the best interests of the child.

The position can be dramatically different internationally. Greece, for example, is the only European Union country to have a comprehensive legal framework relating to surrogacy, and the only one in which a surrogate has no rights to the child at birth regardless of their genetic relationship to the child.

5. Who are the child's legal parents?
Many assume that if the child is biologically the child of the intended parents that they will be the legal parents of the child at birth, but this is not the case.

At birth, the woman who carries the child will always be that child’s mother in the eyes of the law, regardless of any genetic connection to the child. Additionally, and whilst it appears odd, if the surrogate is married or in a civil partnership, their spouse or civil partner will legally become the child’s father or second mother.

The only way the intended parents can become the child’s legal parents is by applying for a parental order.

6. How do I obtain a parental order?
In order to become the “legal parents” the intended parents will need to make an application for a Parental Order to the family court under the Human Fertilisation and Embryology Act (2008). The surrogate mother (and father or second mother, if applicable) must agree to this and the child must be at least 6 weeks old when the agreement is given.

To be granted a Parental Order the intended parents will need to comply with the following requirements:

• The child must be genetically related to one of the intended parents;
• The intended parents must be married, civil partners or in a ‘committed relationship’ (at the time of writing the law does not allow a single intended parent to apply for a Parental Order);
• Usually the application must be made within six months of the child’s birth. Whilst this can be extended in certain circumstances if it is considered to be in the child’s best interests, applicants should be sure to make the application well in advance of this date.
• The child’s intended home must be with the intended parents;
• At least one of the child’s intended parents must have a legal connection to the UK;
• The intended parents must be above the age of 18;
• The surrogate mother and any other legal parents must agree to the Parental Order being made;
• Other than expenses, no money or benefit (other than expenses) can have been paid in relation to the surrogacy.

The court can still make a Parental Order if payments of this nature have been made, but will carefully review any arrangement that purports to be a ‘baby purchase’. However, there is no recorded case where the court have refused to make a Parental Order on this basis and the overall view is that the court takes a fairly relaxed view on the matter.

Once a Parental Order is made, the intended parents become the child’s legal parents and the surrogate (and any other legal parents) will cease to be the legal parents. At this point a new birth certificate is issued with the new parents’ names on.

If the intended parents cannot apply for a Parental Order for whatever reason, an application for an adoption can be considered as an alternative remedy.

If you are a surrogate or a couple hoping to enter into a surrogacy agreement and have any further questions or would like assistance with the preparation of a surrogacy agreement or an application for a parental order, please contact Richard Burnham, a solicitor in our family team.