February 2018 saw the first surrogacy guidance published by the Government for use in England and Wales.
This surrogacy guidance, although not updating the law, is intended to help the parties avoid some common traps. It stresses the importance to intended parents and surrogates alike of the use of a licensed surrogacy organisation to assist with finding one another, and for both parties to prepare a written surrogacy agreement to cover as many issues as they wish. These can range from conception, to the re-imbursement of expenses, to the future relationship between the surrogate and the child.
The guidance also discourages the use of informal surrogacy arrangements and the use of clinics outside of the UK. The aim is presumably to mitigate the various immigration and litigation complexities that can arise in this area of law after the birth of the child. Unfortunately, many intended parents simply don’t have any choice but to seek help abroad, given the shortage of surrogates in this country. Nevertheless, surrogacy arrangements outside the UK can work very successfully with the right preparation.
It is widely known that the law has fallen behind current societal practice; it does not give intended parents automatic responsibility for the child (a Parental Order has to be obtained) and it does not recognise surrogacy agreements as enforceable. The recent publication of the guidance suggests that the Government is starting to recognise the increasingly diverse ways in which individuals are adding to, and creating, a family. As the guidance becomes adopted throughout England and Wales it will hopefully prompt a change in the law to help safeguard the surrogate and intended parents throughout the surrogacy process.
The guidance can be found here.
If you are considering using a surrogate in the UK or abroad and would like advice and assistance, please do not hesitate to get in contact with Karma or another member of our expert Forming Families team on 020 7631 4141.