Surrogacy UK Law & Surrogacy Advice
Advice on surrogacy law provided by our surrogacy lawyers and solicitors.
Conceiving using a surrogate mother can be a very emotional and anxious journey. The law on surrogacy is technical and complex and it is therefore vitally important that the intended parents and the surrogate mother receive clear advice as to how the law applies to them prior to entering into any agreement or conceiving. As surrogacy lawyers we offer specialist surrogacy legal advice.
How has the law changed?
From 6th April 2010 the surrogacy rules were revolutionized regarding the assignment of parental rights and the recording of non-biological parents on a child's birth certificate.
How the law works and how it will effect your specific circumstances is explored below, but if we do not address all of your questions please contact us for more information and to meet with our specialist surrogacy solicitor.
I have found a surrogate, do I need a formal agreement?
If you proceed without a surrogacy agreement, known as an informal arrangement, you as the donor or the intended parent can be in a vulnerable position. The likely scenario is that can arise giving justification to a formal process can include: the surrogate deciding to keep the baby herself; refuse to give you contact; playing an active role in the child's upbringing even though she agreed not to etc. A formal arrangement sets out all the agreed terms before anything has been done. Although this is not binding or legally enforceable, it will clearly set out your intentions and the family courts are showing some sympathy to these arrangements. Solicitors are not able to draft or negotiate these arrangements for you.
Once the baby is born you will have 6 months to apply for a Parental Order and register as the intented parents. When the Parental Order is granted, a new birth certificate will then be issued showing the biological parent and the other parent, it will not record the birth mother. As intended parents you then acquire all the rights and responsibilities that the biological parents would have.
What if we use a surrogate abroad?
The Human Fertilisation and Embryology Act 1990 does permit couples to have an arrangement with a surrogate mother overseas and it does permit you to acquire parental rights regonised in the UK. However, if you pay her over and above what is permitted under UK legislation the court can and has denied a parental order.
Am I allowed to pay the surrogate mother?
You are permitted to pay only "expenses reasonably incurred", such as compensation for time off work, medical bills and living or care expenses. Anything that can be seen as simply a transactional fee can cause you serious issues at court in obtaining parental rights. Rceent High Court case law has challenged this though and stated the welfare of the child should take precedence before refusing a parental order because of what has been paid.
As a gay father can my civil partner have parental rights?
If you register the surrogacy agreement and follow the procedures your civil partner can be recorded on the birth certificate as the 'other parent' and will acquire full parental rights. If done correctly and within 6 months of the babies birth, the certificate is reissued with these details. Gay parenting has become simpler
Can I have a surrogacy arrangement if I am single?
Sadly, even if you are a biological parent the UK can decide not to grant you a parental order and recognise you as the UK legal parent. This can cause you difficulties since the surrogate will retain her legal rights over the child in this instance. If you use a surrogate abroad you may get a birth certificate with you as named parent but sadly in the UK this is not valid and you may face immigration issues. I would therefore suggest you meet with us if you are considering this to ensure you are fully aware of your rights and the risks.
What does surrogacy mean for maternity and paternity leave?
At present sadly you will not qualify for these benefits. Only mothers who have been pregnant or some who have recently placed adopted babies can benefit from the statutory benefits.
Is it vital that we register within 6 months of the birth?
In simple terms, if you do not, you risk losing the child. This can be a particular problem if you divorce or dissolve your partnership and the non-biological parent has not been registered as he/she will have no parental rights and potentially no rights to contact. If you bring a child back from abroad and fail to register you could risk losing the child altogether or the surrogate may decide to apply to take back her child. Know the law and understand how to protect yourself before entering into an agreement.
Where can we find out more and get support?
Barrie Drewitt-Barlow and his husband have set up an extremely successful advice centre The British Surrogacy Centre that can help you find a surrogate and guide you through the whole process. http://www.britishsurrogacycentre.com/
The Human Fertilisation and Embryology Authority is the UK's regulatory body for fertility treatment, which oversees licensed fertility clinics in the UK > www.hfea.gov.uk
COTS is an association which provides support for surrogacy arrangements. They can help both surrogates and intended parents through the process and facilitate an introduction > www.surrogacy.org.uk
Infertility Network is a charity in the UK providing guidance for both fertility treatment and surrogacy > www.infertilitynetworkuk.com
How much will a simple parental application cost us?
If the order is not disputed and its a relative straight foward matter we aim to fix our fees to a first consultation fee £250 plus VAT and the full proceedure to conclusion thereafter capped at £5000 plus VAT and application fees.
A consultation to review of a surrogacy agreement will be between £1000-1500 plus VAT
Can I protect my surrogate child in my Will?
It is very important that as intended parents you update your Wills incase anything goes wrong during the surrogacy arrangements. You should cover the payment of expenses required for the surrogate and appoint guardians in the event of your death. If you can agree this the surrogate should have a Will appointing you as the intended parents as the babies guardian. We would also suggest you consider updating life insurance policies.
What could go wrong?
Avoid the pitfalls!
Surrogacy arrangements are legal here in the UK, but you should know the following limitations our current laws have:
(1) The surrogate contract is not legally binding
(2). A gestational mother can change her mind about giving you the baby up to six weeks after the birth
(3) You cannot pay a surrogate other than reasonable expenses
We know people have been going abroad for surrogacy arrangement to avoid these limitations and having informal surrogacy arrangements. We understand financial constraints have also left couples making informal arrangements and making court applications themselves.
We have however, seen the dire consequences of this cost cutting exercise and urge you to take the appropriate advice early on and use experienced lawyers trained to ensure you have the best possible chances of success.
The High Court was recently required to address a case where a surrogacy arrangement had failed in that the surrogate refused to give up the baby. This leading case flagged up the serious consequences and risk that can arise by the making of informal surrogacy arrangements. The costs of this case, the financial liabilities of the father and the sad and emotional distress of the intended parents is a warning to those that wish to embark on these arrangements without written agreements and the best advice they can get.
You would not buy a house in the UK without a lawyer so we impress upon you don’t arrange the transaction of acquiring a child without the best possible advice you can get.
(1) Have a written agreement which at least shows a court the parties intention before the conception
(2) Ensure you understand and comply with the reasonable expense laws. Even if going abroad if you are bring the baby back to the UK our laws on this will still prevail
(3) Understand the legal process of getting a Parental Order after the surrogacy and understand the 6 week cooling off period the surrogate has
Be aware of the laws and pitfalls to help you avoid falling into them. We are here to help you at every stage
Please read the 'Ultimate Guide to Surrogacy' written by the British Surrogacy Centre and contributed to by A City Law Firm LLP - to purchase click here
end
At A City Law Firm LLP our surrogacy lawyers will advise you at the very beginning of the surrogacy laws and criteria and make sure you understand your options and obligations along with the processes to be followed. Book a consultation with our surrogacy solicitor.