Surrogacy is an arrangement in which a woman carries and delivers a child for another person or couple.
The woman who has the child is called the surrogate. The parent or parents for whom the child is intended are called the commissioning, intended or social parents.
There are two general models of surrogacy arrangement:
Traditional surrogacy may be performed at an IVF clinic, or by artificial insemination at home. A child born through traditional surrogacy will be biologically related to the commissioning father.
An IVF clinic is always required for host surrogacy. A child born through host surrogacy will not be biologically related to the surrogate mother.
Commercial surrogacy is illegal in this country, under the Surrogacy Arrangements Act 1985.
The Act makes it a criminal offence, on a commercial basis, to:
Certain advertisements about surrogacy are also illegal, namely those indicating:
Surrogacy other than on a commercial basis is legal in the UK.
The fact that commercial surrogacy is illegal might suggest all payments connected with a surrogacy arrangement are against the law.
This is not the case.
Payments made to, or for the benefit of, the surrogate mother are not illegal under the Surrogacy Arrangements Act 1985.
However, at a later stage in a surrogacy arrangement, any payments made to a surrogate will be looked at carefully.
A written document is not necessary. However, many involved in a surrogacy arrangement will find it comforting to have recorded in writing their respective expectations.
A surrogacy agreement, if prepared, can be as general or as detailed as the commissioning parents and the surrogate wish. It should record the amount and purpose of any payment made to the surrogate.
Many surrogacy arrangements proceed on the basis that the surrogate will have no involvement in the childs life once he or she is born. If that is agreed, it should be recorded in writing. If it is intended the surrogate will have some relationship (which might range from being sent pictures and updates once a year to regular time together) with the child, that should be spelled out.
In the UK, a surrogacy agreement is not enforceable. A surrogate may decide to keep the child she is carrying. She has the right to do so, even if the child is not genetically related to her (as in host surrogacy). Any agreement with commissioning parents cannot be enforced as if it were a contract. There is no right to reclaim any money paid by the commissioning parents to the surrogate for expenses.
If a surrogate does change her mind, a Family Court Judge can be asked to resolve the dispute. He or she will do so by deciding the outcome that is in the best interests of the child.
The reverse is also true: commissioning parents may change their mind in which case the child would remain with the surrogate.
From a legal point of view, surrogacy agreements are treated in the same way as pre-conception agreements.
Statistically, changes of heart by the surrogate or commissioning parents are rare. Surrogacy UK estimates that only about 2% of surrogacy arrangements break down.
At birth, the woman who carried the child is always the legal mother, even if there is no genetic relationship (as in host surrogacy).
The childs legal father, or second parent, will usually be the surrogates husband, civil partner or cohabitant.
If treatment was performed in a licensed clinic, and the surrogate has no partner, the child will have no legal father or second parent.
The commissioning parents may become the childs legal parents by applying for a Parental Order. Unless they do, they will not be the childs legal parents even if either or both of them are genetically related to the child.
The Human Fertilisation and Embryology Act 2008 allows the court to make a Parental Order in relation to a child born through surrogacy.
The following conditions must be met:
The court can still make a Parental Order even if payments have been made beyond those described in the last condition. Whether it will do so depends on (amongst other considerations) the sums involved and the surrogates financial circumstances. The court will look very carefully indeed at an arrangement that amounts to the purchase of a child via surrogacy.
If a Parental Order is made, the commissioning parents will become the childs legal parents. They will acquire PR. The surrogate (and any legal father or second parent), will cease being the childs legal parents. A new birth certificate will be issued for the child naming the commissioning parents.
The law presently does not allow a single commissioning parent to apply for a Parental Order.
If commissioning parents cannot apply for a Parental Order (for example, if neither is related to the child genetically, if the child is more than six months old, if the surrogate has withdrawn her consent, or if there is only one commissioning parent), an application for an adoption order is an alternative.
Increasingly, commissioning parents are entering into arrangements with surrogates outside of the UK. The issues identified above also apply to international surrogacy arrangements but the international dimension raises many further complications. Our International Surrogacy section provides a more detailed list of the issues you need to consider but key concerns include:-
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