Surrogacy and fertility law

A surrogacy agreement is a document that is put together by the intended parents and surrogate to outline the arrangements that have been decided on. While not legally binding, this agreement ensures everything is clearly documented, explaining the basis of the agreement and the approach that will be taken.

While all surrogacies are unique, it's important to outline a plan of how to approach the events that will occur during the process. Some of the key elements you should include in a surrogacy agreement are:

• Full details of everyone involved
• Conception arrangements, including embryos and clinic details
• Commitments relating to the pregnancy, such as who will attend scans and other relevant appointments
• Difficult scenarios and how these would be approached, including miscarriages, stillbirth and decisions around termination
• Agreements around the birth, including who will be attending
• Post-birth expectations

Yes; it has always been legal to enter a surrogacy agreement in the UK.
However, surrogacy agreements are not legally binding and are therefore unenforceable. This means that everyone involved should establish a level of trust between each other in order to honour the agreement.

Putting everything down in writing helps to clarify the agreement and encourages good communication between the surrogate and the intended parents.

The chances of this happening are very low. However, the surrogate does remain the legal parent until a parental order has been made. Their consent is also required before the parental order can be granted. If circumstances do change, be sure to speak to your surrogacy attorney to find out the next steps.

You're well within your rights to enter a surrogacy agreement abroad. However, it is important to do extensive research into what this will entail, depending on the country in which you choose to find a surrogate. In some cases, your gender and marital status can determine which options are available to you. You must always comply with UK law and the law of your chosen country.

The surrogacy process can involve many complex legal issues, especially if you're having treatment abroad. That's why it's so important to seek the advice of a fertility lawyer.

In the UK, the surrogate is the legal mother of the child unless you are granted a parental order from the court. This is also the case if you are named on a foreign birth certificate, in which the surrogate will still be recognised as the child's legal parent in the UK. If the surrogate is married, their partner will be automatically named the second legal parent of the child.

Once you have received a parental order, though, the surrogate will have no further rights or obligations to your child.

Parental orders are available to couples or single applicants. The criteria are:

• The child must have been born by surrogacy
• There must be a direct genetic link between at least one of the applicants
• If applying as a couple, the applicants must be married, in a civil partnership or living as partners in an enduring family relationship
• The application should be made within six months of the child being born (although the courts do allow applications made out of time)
• The child’s home must be with the applicants at the time of making the application and when the court is considering making a parental order
• At least one of the applicants must be domiciled in the UK, Channel Islands or Isle of Man
• The applicants must be aged over 18 years
• The surrogate and any other legal parent must unconditionally and with full understanding of what’s involved, agree to the making of a parental order. The consent of a surrogate can’t be valid until the baby is at least six weeks old
• The need for consent can only be dispensed with if she can’t be found or is incapable of giving agreement
• If payments that exceed reasonable expenses have been made, the court must authorise the payments before it can make a parental order.

This is an area of law where the courts have been creative in how they’ve applied the law to the facts of cases. Take advice in relation to your own circumstances.  

Not everyone who undertakes surrogacy is eligible for a parental order. In our experience, this usually arises where we can’t satisfy the domicile criteria or if there is no genetic link between the applicants and the child. Depending on your circumstances, alternative orders may be available including child arrangements orders or, potentially, adoption orders.