Assisted Reproduction and Surrogacy Lawyers
Understanding Surrogacy In the UK
It is legal to enter into surrogacy arrangements in the UK.
However, there are some rules regarding these agreements – parties to such an agreement should take appropriate legal advice, as an application for a parental order after a surrogacy pregnancy is regulated by strict conditions.
Did You Know Surrogacy Agreements Are Not Legally Binding?
Surrogacy agreements are not enforceable in England and Wales.
Therefore, in respect of giving the child to the intended parents, and dealing with expenses and other issues, it is important that the parties respect the agreement into which they have entered.
It is not possible for a third party, such as a solicitor, to negotiate or represent the intended parent or surrogate in agreeing to the terms of a surrogacy agreement.
Some parents worry about what may happen if a surrogate wants to keep the baby after birth. Understanding between both parties is important, and although an agreement is not technically legally binding, it can clarify matters and promote good communication.
There are many surrogacy arrangements every year in the UK and such problems are rare.
If there is a dispute about who should look after a child after birth, a party can make an application to the court under the Children Act, for a Child Arrangements Order.
Yes, there are some reported cases in this area of law, but applications are rare.
The court deals with each case on a case-by-case basis, as each is unique and reflects different situations.
The court has to consider a child’s best interests, and there have been cases where a surrogate has been allowed to keep a child and other cases where a child has been transferred to the intended parents.
Can You Pay for Surrogacy in the UK?
It is legal for parents to pay a UK surrogate more than reasonable expenses.
The issue of payments is a consideration for the family court, which has to authorise any payments which are more than reasonable. This has to be done before a parental order is made by the court.
The court has to decide what is a reasonable expense in each case.
Each case is individual, but there is an authority about the court failing to make a parental order due to issues with over-reasonable expenses. This is an important issue to consider when deciding how much expenses are paid.
What to Know About Fertility Clinics
Advertising
It is an offence to advertise that you are looking to engage with a surrogate mother, wanting to act as a surrogate mother, or for a third party to facilitate the making of a surrogacy arrangement if it is not a non-profit organisation.
Surrogacy Agencies
It is a criminal offence for a third party to receive payment for arranging surrogacy, although there is an exemption for non-profit organisations. There are some non-profit agencies that work within the rules.
Treatment at UK Fertility Clinics
The Human Fertilisation and Embryology Authority’s Code of Practice sets out the obligations of UK fertility clinics dealing with surrogacy treatment.
Clinic Obligations to Surrogacy Patients
Fertility clinics have to get appropriate consent to treatment from both intended parents, the surrogate and her partner. There are specific HFEA forms for surrogacy.
Counselling
Counselling should be offered to all involved in a surrogacy arrangement.
Understanding Legal Parenthood
Special rules on legal parenthood apply when treatment takes place at a licensed fertility clinic.
The Human Fertilisation and Embryology Authority has helped these clinics to update guidance, which makes clear that:
- The surrogate is the legal mother of the child
- If the surrogate is married, she and her partner are the legal parents. In rare cases where it can be shown that the surrogate’s significant other does not consent, the surrogate can complete Form LC to explain the circumstances. Form LC cannot be used routinely as a way of excluding the spouse from being a legal parent but it can negate parenthood if the spouse genuinely does not consent
- If the surrogate is not married (or her spouse does not consent to the conception) there is a choice as to who is the second parent. The biological father is the legal father if no HFEA parenthood forms are signed. Alternatively, someone else (usually the intended mother or the non-biological father) can be nominated as the other parent by using HFEA Forms SWP and SPP. The forms must be signed after counselling and before conception. It is not possible to nominate the surrogate’s sibling, parent, or child as the other parent
Get in Contact with Our Assisted Reproduction and Surrogacy Law Experts Today
Our team helps families resolve issues over child contact arrangements and supports families to grow through surrogacy, donor conception, and adoption. We are home to the most specialist children’s law team in the country, so you can rest assured that we can help you.
To speak with one of our lawyers, call us on 0333 202 6433 or email us at hello@mcalisterfamilylaw.co.uk.
