Surrogacy: issues to consider when choosing a UK based or overseas based surrogate

Legal framework

The UK has a well-established legal framework for surrogacy, primarily under the Human Fertilisation and Embryology Act 2008. This ensures that the process is clearly regulated.

After the birth, intended parents can apply for a Parental Order to legally become the child’s parents, with the surrogate relinquishing their parental rights. This provides legal clarity and security.

Legal complexity

Surrogacy agreements are not legally binding in the UK.

A surrogate retains legal parentage until a Parental Order is granted, with the process for obtaining a Parental Order normally taking between 6 and 12 months.

Whilst the UK has a well-established legal framework, the process of obtaining a Parental Order can be complex. It is strongly advised that you seek specialist legal advice in good time.

Ethics and transparency

Surrogates in the UK are considered to act altruistically, this meaning that they are not involved for commercial reasons and cannot be paid (beyond reasonable expenses). This could make the process feel less transactional and commercial in comparison to having a baby with a surrogate from overseas.

Immigration issues including nationality

A child born through surrogacy, even if born in UK to a UK based surrogate, may not be British at birth.

The surrogate mother is considered the legal mother and, since 1 July 2006, if the surrogate mother is married, then the husband is considered the father. Parental Orders may need to be obtained in order to have the child confirmed as British. This is important because a surrogate child is not British if the:

• surrogate mother is not a British citizen
• commissioning father is a British citizen otherwise than by descent
• surrogate mother is married to someone who is not a British citizen

It is strongly recommended to obtain immigration and nationality advice prior to commencing the surrogacy process.

Access to UK healthcare

Whilst they will need access to a private clinic initially, surrogates and intended parents both have access to the National Health Service (NHS) throughout the pregnancy.

Limited availability of surrogates

Surrogacy in the UK is not as common as in other countries, and finding a surrogate who is willing to help may be challenging.

No need for travel

If you live in the UK, there is no need to travel abroad for surrogacy arrangements, which could be costly and complex in terms of logistics and legalities.

Long process

The process of finding a surrogate can be long, as there are less available surrogates than perhaps overseas.

Potential for post-birth disputes

Although the legal system is designed to ensure the child is placed with the intended parents, there can still be post- birth legal disputes, particularly if the surrogate changes their mind about giving up the child or a medical emergency or issue arises.

More options for surrogacy arrangements

Some countries have more flexible laws than the UK regarding surrogacy, and some have legal frameworks tailored to surrogacy (such as the US). For example, some countries recognise intended parents as legal parents from birth, however, the intended parents would still need to apply for a Parental Order in the UK.

Legal complexity

Whatever country you are considering you need to research the laws and regulations surrounding surrogacy and take legal advice in that jurisdiction. Each country has different laws surrounding parental rights and surrogacy contracts.

International surrogacy cases are automatically allocated to the High Court in the UK and are heard by one of a small number of specialist judges. You need to ensure that you seek legal advice from the outset so that you can consider and take actions to limit potential risks.

The legal rights of the surrogate may also be different overseas, giving rise to the possibility of disputes over parental rights when the child is born.

Access to commercial surrogacy

In some countries commercial surrogacy is allowed, and intended parents can offer financial compensation to the surrogate.

Immigration issues including nationality

One of the most significant risks of overseas surrogacy is the potential for complicated legal issues about immigration issues when the child returns to the UK.

A child born through surrogacy may not be British at birth. As above, the surrogate mother is considered the legal mother and, since 1 July 2006, if the surrogate mother is married, then the husband is considered the father. Parental Orders may need to be obtained in order to have the child confirmed as British. This is important because a surrogate child is not British if the:

• surrogate mother is not a British citizen
• commissioning father is a British citizen otherwise than by descent
• surrogate mother is married to someone who is not a British citizen

It is strongly recommended to obtain immigration and nationality advice prior to commencing the surrogacy process.

Shorter process

With access to commercial surrogacy, this in turn can often lead to a larger pool of willing surrogates and can shorten the time that it takes for intended parents to find a match.

Costs

You may have to make payment to the surrogate, including for travel, medical, and legal costs. This will of course vary depending on the country.

Uncertainty around surrogacy laws

Surrogacy law evolves and can change. Some countries have closed their doors to international surrogacy whilst others have imposed restrictions. It is important to be well informed, and choose a country with stable, clear, and supportive laws.

Ethical concerns

Some people may find the idea of commercial surrogacy ethically challenging.

Further, there is a greater risk of exploitation in countries where the legal framework governing surrogacy arrangements is underdeveloped.

Travel and logistical challenges

You may have to travel multiples times during the process. This adds additional costs, and potentially stress.

Distance from the surrogate

Being geographically distant from the surrogate may make communication and maintaining a relationship with them more difficult. This could add emotional strain for intended parents who want to be closely involved throughout the pregnancy.

Potential for language and cultural barriers

If you choose a country with a different language or cultural practices, there may be communication issues or misunderstandings in terms of expectations, treatment, and surrogacy agreements. It may also be necessary for documents to be translated and explained by an independent third party such as a notary before they are signed by the surrogate.

Access to healthcare

Depending on the country, there may be concerns about the quality of healthcare available to the surrogate or the potential risks posed if there are lower medical standards.