Surrogacy has progressively become a more viable option for individuals and couples seeking to expand their family and who may face challenges conceiving naturally.
There are some legal considerations individuals and couples may wish to consider before embarking on this journey. Lavanya Hart, Wills and Probate solicitor, and Lynsey Roadnight, Family Law solicitor, have covered frequently asked questions below.
What is surrogacy?
Surrogacy is an arrangement where a woman “the surrogate” carries and gives birth to a baby for another person or a couple. The purpose of surrogacy is to provide an avenue for those who have otherwise been able to find a path to parenthood.
Surrogacy often involves In Vitro Fertilisation (“IVF”) which is where an egg is fertilised outside of the body and then implanted into the surrogate’s womb.
Usually, the intended parents will then assume legal and parental responsibilities for the baby once they are born.
Why do people opt for surrogacy?
People can opt for surrogacy in circumstances where they are unable to conceive naturally or to carry a child themselves. Common reasons include:
- Medical Risks – Natural pregnancy may not be a viable option for an intended mother due to medical risks or abnormalities.
- Genetic Conditions – Some intended parents may feel restricted by genetic disorders they possess and may not wish to pass on to their child.
- Infertility – If traditional conception fails due to infertility, surrogacy provides an alternative route to parenthood.
- Single individuals – Surrogacy is an option for single individuals wishing to become parents without a partner.
- LGBTQIA+ – For same-sex couples, surrogacy is a viable option to have a genetically related baby. This is particularly common amongst homosexual men as homosexual women commonly opt to use a sperm donor for this reason.
Are there different types of surrogacy?
Yes, there are two main types of surrogacy:
Traditional surrogacy / Straight surrogacy
This is where the surrogate uses their own egg. The surrogate is the biological mother of the child and this results in more legal complexities to overcome. For this reason, Traditional / Straight surrogacy is less common and there is a greater chance of surrogacy agreements being breached due to the attachment the surrogate forms with the baby.
Host surrogacy / Gestational surrogacy
This is where the surrogate carries an embryo that has been created via IVF, with the egg and/or sperm coming from the intended parents or donors. The surrogate bears no genetic relation to the baby, meaning there are less legal and emotional complexities. For this reason, Host/Gestational surrogacy tends to be the preferred method of surrogacy.
How does the law in the UK treat surrogacy?
Entering into a surrogacy arrangement is completely legal in the UK. However, there are restrictions which need careful consideration. Surrogacy Agreements are not legally enforceable in the UK. This means that the whole agreement relies on trust. Should either party (the surrogate or the intended parents of the child) change their mind, the agreement cannot be enforced in court proceedings.
Even in circumstances where a surrogate mother bears no genetic connection to the child and the embryo is created using the intended parents’ eggs and sperm, they will be identified as the legal mother of a child born through surrogacy.
Likewise, if the surrogate is married at the time of the child’s birth, her spouse will automatically be identified as the child’s legal father or second parent and will have parental responsibility for the child. If the surrogate is not married at the time of the child’s birth, they can nominate a second parent of choice, which could include the child’s biological father.
How can the child’s intended parents become their legal parents?
This can be done by way of a Parental Order, which acts to transfer parental responsibility from the surrogate and her husband or second parent to the intended parents of the child so that they can become the child’s legal parents.
You cannot apply for a Parental Order for the first six weeks after the child is born as a surrogate is not able to consent to it before this time. However, there is a limited timeframe in which to make the application, which must be submitted to the Family Court within six months of the child’s birth.
If the application is approved and not contested, the child’s birth will be re-registered and the child will receive a new birth certificate which then names the intended parents as the child’s legal parents. There are certain circumstances in which you cannot apply for a Parental Order (including where the child is not genetically related to either parent). In those cases, there are other steps which can be taken as an alternative.
How can surrogacy impact your Will?
We will always recommend our clients have a well-drafted Will to avoid future complications. This is particularly essential in the context of surrogacy.
A Will can identify specific issues including who will care for the child in the event of the parents’ death, any financial provisions for the child and any potential special wishes regarding the child’s upbringing.
If the intended parent involved in the surrogacy arrangement dies without a Will before a Parental Order is made, there is a strict legal framework in which the intended parent’s estate will be administered.
In this instance, the surrogate child would not have any automatic legal rights to claim from the intended parents as they would not be classified as the intended parents’ child until the Parental Order is made. This may also cause complications with wider family members and definitions such as grandchild, niece, nephew etc which may not be legally accurate.
Do I need a specialist surrogacy Will and what would it include?
We recommend you obtain formal legal advice from one of our Wills and Probate specialists if you are looking to make a Will which will cover your surrogate child and your specific circumstances. For individuals or couples embarking on a surrogacy journey, the following provisions are considered:
- Guardian appointment – who will care for your child if you were to die before the Parental Order was issued or whilst the child was under 18?
- Inheritance – a surrogate child will not automatically inherit from their intended parents’ estate. A surrogate may wish to specifically exclude any surrogate children she is carrying to ensure they do not automatically qualify to inherit from her estate.
- Surrogacy expenses – there is no clear legal framework relating to surrogacy arrangements. If intended parents die and some of the agreed expenses are outstanding, the surrogate is not entitled to this from the estate unless the intended parent has provided a gift to cover any outstanding expenses to the surrogate in their Wills.
What happens if I have an international surrogacy arrangement?
If your surrogate mother resides outside of the UK and there is an international element to your surrogacy agreement, this can give rise to a whole range of very complex legal issues both within family and immigration law.
You would need to seek legal advice in the foreign country in which your surrogate resides as to the legality of the agreement that you have reached as well as the immigration status of the child and the steps you would need to take to bring the child to live in the UK following their birth.
How can we help you?
At Howell Jones Surrey Solicitors, we have a wealth of experience in helping and advising intended parents and surrogates.
Please note that we cannot assist in drafting or negotiating a Surrogacy Agreements, as it is against the law in the UK for a third party (including a Solicitor) to do so.
If you have any queries about your specific arrangement, if you’re seeking assistance on a surrogacy Will or a parental order, please contact our friendly Wills and Probate and Family Law team and they would be delighted to assist.
