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Surrogacy – understanding the options

Surrogacy

The number of parents having a baby using a surrogate in England and Wales has almost quadrupled in the past 10 years.

Parental orders, which transfer legal parentage from the surrogate, rose from 117 in 2011 to 413 in 2020. Two-thirds of applicants are now mixed-sex couples often in their 30s or 40s.

There’s a case to say the surge has been fuelled, in part at least, by celebrity endorsement, with the likes of soccer icon Cristiano Ronaldo, Olympic diving champion Tom Daley and TV presenter and former model Tyra Banks all going down the path of surrogacy.

Surrogacy is when a woman carries a pregnancy for another couple or individual. In most cases it is because someone cannot carry a pregnancy themselves for health reasons or because they are men in a same-sex relationship.

Susannah Burley, of KWW Solicitors’ Family Law team, says there is a growing feeling that the UK law on surrogacy – in place since 1985 – is outdated and leaves both surrogates and intended parents vulnerable. The Government agrees the surrogacy law in the UK needs to change and has asked the Law Commission of England and Wales along with the Scottish Law Commission to review it.

The Law Commission is in the process of drafting finalised recommendations for reform and a draft Bill of proposed changes, which is due to be completed in Autumn 2022.

As it stands, there are strict rules on what is permitted within an arrangement, and legal advice should be taken so you understand your rights during the process. 

Importantly, commercial surrogacy is not currently legal in the UK and any payments made to surrogates will be scrutinised by the Court to ensure they do not go above and beyond “reasonable expenses”.

It becomes more complex if you decide to take a global approach and find a surrogate overseas. You will still need to ensure you are recognised as the legal parent of the child when you return to the UK.

Types of surrogacy

There are two recognised types of surrogacy arrangement in the UK:

  • Total surrogacy or Gestational surrogacy this is where a woman agrees to allow your egg, or that of your partner, to be implanted into her womb following fertilisation by you or your partner and then to carry your genetic child. Even though you and your partner will be the genetic parents of the child, the surrogate will still be recognised as the legal mother when the baby is born. So, you will need a legal order to transfer parental responsibility to you six weeks after the baby is born.
  • Partial or Traditional surrogacy – this is where a woman agrees to be artificially inseminated with the sperm of you or your partner, to fertilize her own egg. The surrogate mother and the sperm donor will be the genetic parents of the child and will usually be recognised as the legal parents at birth.  This is unless the surrogate mother is married and her husband did not consent to the insemination. In this case the baby will be the legal child of the surrogate and her husband until the court orders that you and your partner can be recognised as the legal parents.

Where both the egg and the sperm needed to create the baby are donated (perhaps by the surrogate themselves and their partner) the surrogate and whoever’s sperm was used will be both the genetic and the legal parents of the child and will have full legal rights in respect of them until those rights are formally transferred to you by a court through a parental order.

Agreements concerning surrogacy arrangements require careful negotiation to ensure everyone understands what is involved and to protect the position of all parties. The surrogate mother and her spouse or partner, if appropriate, need to be fully committed to transferring parental responsibility to you once the baby has been born.

Many parents find it beneficial to use a family mediator or collaborative family lawyer to explore the options and reach an agreement. If this is appropriate in your case, we at KWW can help to arrange this.

If you are thinking about entering into a surrogacy agreement or need legal advice on any other family law matter, contact Susannah Burley or our Head of Family Law, David Anstee.

This article is for general information purposes only and does not constitute legal or professional advice. Please note that the law may have changed since the date this article was published.

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