Surrogacy offers a life-changing path to parenthood for many intended parents (IPs), but navigating its legal, financial, and procedural complexities can be daunting.
Before embarking on a surrogacy journey it is important that all parties concerned have a full appreciation of not only the risks involved but also the legal process for transferring legal parenthood from the surrogate mother (and potentially her spouse or civil partner) to the IPs. Some fertility clinics will insist upon IPs obtaining independent legal advice before beginning treatment. Whether this is a mandatory requirement or not, it is always recommended to seek legal advice at the earliest opportunity.
In the UK surrogacy is legally recognised provided that it takes place on an altruistic basis. Commercial surrogacy, when the surrogate is paid a fee for having a baby, is prohibited. This means that surrogacy contracts and arrangements are not legally enforceable, and a solicitor cannot draft such a document on behalf of either the surrogate or the IPs.
However, this does not mean that legal advice is irrelevant. A solicitor can help guide a surrogate or the IPs through the surrogacy process so as to ensure that they understand the legal implications. They can also assist with the process for applying for a parental order and obtaining the requisite immigration status.
Proper planning and due diligence are key to a successful and stress-free surrogacy journey.
Understanding the section 54 criteria
In order to transfer legal parenthood from the surrogate to the IPs it is necessary to apply for a parental order. Before the court can make a parental order in favour of the IPs they will need to demonstrate that they have complied with the criteria set out under section 54 of the Human Fertilisation and Embryology Act 2008.
In particular, IPs must meet the following criteria:
- The child must be carried by a woman who is not one of the applicants.
- The child must have a genetic link to at least one of the IPs.
- The surrogate (and her spouse or civil partner, if applicable) must freely consent to the parental order after the birth with a full understanding of what is involved.
- The applicants have to be aged 18 years or over.
- The application for the order is made after the child is six weeks old but before they are six months old.
- The IPs must be married, in a civil partnership or in an “enduring family relationship”.
- The child’s home must be with the applicants at the time of the application and also the date when the order is made.
- One or both of the applicants must be domiciled in the UK.
- No money or other benefit must have been given or received, other than for reasonable expenses, unless the court authorises such payment (retrospectively, if appropriate).
Failing to comply with these criteria could result in significant legal complications and delays. Seeking advice early ensures these requirements are properly addressed in advance.
Further information on what may or may not be considered “reasonable expenses” can be found in our article here.
Financial planning: beyond fertility and surrogacy costs
Many IPs focus primarily on the initial cost of fertility treatment and any expenses that they are likely to have to meet on behalf of their surrogate. However, the cost of obtaining a parental order should also be factored into any overall budget. This process involves a court application, and assuming the parties are represented there will be legal fees as well as the initial court fee.
Advance planning allows IPs to allocate sufficient funds for all aspects of the journey, reducing financial stress at critical moments.
Key considerations before starting a surrogacy arrangement
Before embarking on surrogacy, IPs should carefully evaluate the following:
Jurisdiction: surrogacy laws vary widely between countries. Some jurisdictions, especially in emerging markets, may lack clear legal frameworks or protections for IPs and surrogates (more on this below).
Due diligence: investigating fertility clinics and surrogacy agencies to ensure ethical practices, transparency, and adherence to legal standards.
Surrogate's well-being: prioritise agencies that provide robust support and protection for surrogates, including medical care, legal rights, and emotional support.
Cultural and legal differences: be aware of cultural norms and legal procedures in the surrogate's jurisdiction, especially regarding consent and parental rights.
Key legal considerations for international surrogacy arrangements
As highlighted above, surrogacy agreements are not legally binding in the UK and will not confer parenthood to the IPs. This contrasts sharply with jurisdictions where surrogacy agreements are enforceable and form part of the legal process.
For Ips considering international surrogacy, understanding the additional implications of such differences is crucial.
1. The lack of international legal frameworks
Currently, no international conventions, treaties, or reciprocal arrangements govern surrogacy. Orders made abroad, regardless of their legal weight in the jurisdiction where they were issued, are not recognised or enforceable in the UK. This means IPs must still apply for a parental order in the UK to establish their legal rights as parents, even if they have already been granted parental status elsewhere.
2. Legal variability across jurisdictions
International surrogacy arrangements are further complicated by the diverse legal approaches to surrogacy worldwide:
- prohibited and unregulated jurisdictions: in some countries, such as France, Germany and China, surrogacy (both commercial and altruistic) is prohibited. In Italy there are laws explicitly criminalising surrogacy even if the arrangement takes place overseas. In other countries, it remains entirely unregulated, which can create ambiguity regarding its acceptance or legality. Early legal advice is essential to navigate these complexities and avoid unintended consequences.
- payment and expense scrutiny: many countries where surrogacy is well-established allow direct payments to surrogates. In the UK, only “reasonable expenses” can be paid to the surrogate, however in some jurisdictions IPs can be expected to make considerable payments to their surrogate. This can create an added layer of stress and uncertainty, and whilst the UK courts have demonstrated a willingness to be flexible in this regard it is always better to make sure that any payments remain within the realms of what would be considered reasonable so as to avoid legal challenge.
3. Pre-birth orders and enforceable agreements abroad
In jurisdictions such as California, commissioning parents can secure legal parenthood before the child’s birth, and surrogates cannot legally withdraw consent if the agreement is properly constituted. While these legal mechanisms offer certainty abroad, they do not alter the UK legal requirements.
Regardless of steps taken in another jurisdiction, IPs must still obtain a UK parental order to be recognised as the child’s legal parents.
The importance of professional support
Beyond legal advice, working with reputable agencies, clinics, and counselling services ensures a well-rounded and supported surrogacy journey. Professionals can guide you through ethical considerations, contractual agreements, and emotional challenges that may arise.
Conclusion
While surrogacy holds immense promise, it demands meticulous preparation. By engaging early with legal professionals and conducting thorough research, IPs can lay a strong foundation for parenthood while avoiding unnecessary legal and financial pitfalls. Proper planning is not just a step in the process; it is the cornerstone of a successful surrogacy experience.
