Surrogacy and the importance of early legal advice

What is surrogacy?

Surrogacy arrangements are when a woman (the “surrogate”) becomes pregnant and gives birth to a child for another person or couple (the “intended parent(s)”). The surrogate may or may not be genetically related to the child.

In “traditional” or “straight” surrogacy, the surrogate uses her own egg and is genetically related to the child. Traditional surrogates may conceive through artificial insemination using the intended father’s sperm, or the transfer of an embryo created used the surrogate’s egg and the intended father’s sperm. Artificial insemination can take place at home or at a licensed clinic. It is usually better to use a licensed clinic, as there are then full and clear records of how conception took place.

In “gestational” or “host” surrogacy, the surrogate is not genetically related to the child. Gestational surrogates conceive through IVF at a fertility clinic, where an embryo (created using an egg from the intended mother or an egg donor) is transferred to the surrogate’s uterus.

Is surrogacy legal in England and Wales and can I enter into a surrogacy agreement?

Surrogacy is legal in the England and Wales. However, it is not possible to enter into a legally binding surrogacy agreement. Surrogacy instead relies upon a relationship of trust between the surrogate and the intended parent(s). It remains helpful to prepare a written agreement setting out everyone’s expectations. Even though this agreement would not be binding, preparing the agreement gives the opportunity to talk through the surrogacy arrangement in further detail, resolve any potential points of disagreement before they arise and give a solid foundation moving forwards.

A non-profit organisation can receive reasonable payment for assisting with a surrogacy arrangement. It is also lawful for the surrogate mother to be paid reasonable expenses for the surrogacy arrangement. It is unlawful for any other third party, such as a solicitor, to be paid for negotiating a surrogacy arrangement. It is also unlawful to advertise that you are looking for a surrogate or willing to act as a surrogate. Further information on the specialist non-profit organisations able to assist surrogates and intended parent(s) is available on the Gov.uk and HFEA webpages.

When should I get legal advice on surrogacy?

If you are considering surrogacy as a way of building your family, or if you are considering becoming a surrogate, then you should obtain legal advice at the earliest opportunity and prior to conception taking place. You should consider:

• The legal position of the surrogate and the intended parent(s) at birth;
• The requirements and legal process of obtaining a parental order, which is the bespoke legal solution in for recognising the intended parent(s) as the legal parent(s) of the child following a surrogacy arrangement;
• If the requirements for a parental order are not met, any alternative options to secure the legal status of the intended parent(s) and the child;
• For international surrogacy, the importance of obtaining separate legal advice in the foreign jurisdiction and carrying out due diligence including
  • The legal position at birth, and details of any pre- or post-birth legal process required;
  • The steps and documentation required to return with the child and whether specialist immigration advice is required; and
  • The nationality of the child at birth.

If you would like further information or assistance in connection with a surrogacy arrangement, then get in touch with Annabel Winsor in the Blake Morgan Family Team.