Surrogacy & assisted reproduction lawyers

Put simply, surrogacy is when a woman carries a child for someone else who wants to be a parent but is unable to become so naturally. The legal definition of a surrogacy arrangement is one which entails a “woman who carries a child in pursuance of an arrangement, and made with a view to any child carried in pursuance of it being handed over to, and parental responsibility being met (so far as practicable) by another person or persons”.

There are two types of surrogacy:

• Full surrogacy (also known as host or gestational surrogacy) is when the intended mother’s or a donor’s eggs are used. In this scenario there is no genetic connection between the baby and the surrogate.
• Partial surrogacy (also known as straight or traditional surrogacy) involves the surrogate’s egg being fertilised with the sperm of the intended father. In this scenario, the child will be genetically the child of the surrogate. It is recommended that treatment is received at a licensed UK fertility clinic.

The process will usually involve the surrogate and intended legal parent(s) having an initial consultation with the chosen licenced fertility clinic, as well as medical screenings, surrogate medications and embryo transfer. It is recommended that all parties seek expert legal advice. The parties involved will often come to a surrogacy arrangement, to set out their intentions for conception, pregnancy, and what is to happen after the baby is born. Often, intended parent(s) will enter into a Surrogacy Agreement with their surrogate to set down their intentions in writing. These agreements can be helpful in ensuring that there is good communication and consensus between the parties as to the journey they are embarking on. It is vital to note that a Surrogacy Agreement it is not legally enforceable or binding on the Court in this jurisdiction.

Surrogacy can involve a variety of family compositions and use one of several medical methods. The surrogate mother can carry a child which is genetically hers and the commissioning man, or one which is the genetic product of the commissioning couple. The effect of the latter method is that there is no genetic link between the surrogate and the baby. While originally surrogacy was most commonly used by opposite sex couples who were unable to have children of their own, recent trends have shown that surrogacy is now being used on an increasing scale by same sex couples and single people.

After the birth of child, the intended legal parent(s) will assume care of the child. Transfer of legal parenthood is then sought via the court. The intended parent(s) will require a Parental Order in order for legal parenthood to be transferred from the surrogate (and her spouse/partner if applicable). If you use a surrogate, she will be the child’s legal mother at birth. If the surrogate is married or in a civil partnership, their spouse or civil partner will be the child’s second parent at birth in certain circumstances. A parental order can only be sought after the baby is born, and will not be granted if the surrogate (and her spouse or partner if applicable) does not consent to the order being granted.

Surrogacy may be appropriate for women with a medical condition that makes it impossible or dangerous for them to conceive and give birth.

It is also an option for male same-sex couples who want to have a child related to one of them, and it can be used by people who are single.

Surrogacy is legal in Scotland, and indeed throughout the UK, but there are many, and not entirely straightforward, legal issues which prospective surrogates and intended parents should consider before proceeding with such an arrangement.

Altruistic surrogacy, meaning that which is not in exchange for payment, is legal in the UK. Commercial surrogacy, where the surrogate is paid in exchange for carrying and giving birth to a baby, is not legal in the UK.

Surrogates can, however, be paid for ‘reasonable expenses’ by the intended parent(s). There is no legal definition or exhaustive list of what a reasonable expense may be.

Many intended parents and surrogates choose to enter into a surrogacy agreement to set out the terms of the surrogacy and ensure everyone involved is of a mutual understanding of what they intend to happen before, during and after the pregnancy. However, surrogacy agreements are not legally binding and cannot be enforced in court like a normal contract. It is rather a statement of intention about how the arrangement will work.

The intended parents do not automatically become the legal parents of the child after the birth. In the UK, legal parents of a child born through a surrogacy arrangement are the surrogate mother and her spouse or civil partner unless his or her consent to the artificial insemination or placing in the mother of the embryo or eggs was not given.

If the surrogate mother is not married or in a civil partnership, or her spouse or civil partner has not consented to the surrogacy, then the genetic father will ordinarily be the legal father.

In other cases, a non-genetic father or second legal parent may become a legal parent, provided only that the stringent agreed fatherhood or agreed female parenthood conditions of the relevant legislation are complied with.

In all other circumstances, the intended parent(s) will require to ask the court to grant an order conferring on them a legal status of parent.

No, surrogacy contracts are not enforceable.

Commercial surrogacy is illegal in the UK. This means that intended parents are prohibited from paying a woman to carry and give birth to a child. However, intended parents are permitted to pay any reasonable expenses that the surrogate incurs in respect of the surrogacy. There are no legal definitions or exhaustive lists of what may be considered a reasonable expense, but they would generally include things such as maternity clothes, travel expenses for medical appointments, and loss of earnings arising as a consequence of the pregnancy.

The level of expenses paid to surrogates vary. According to Surrogacy UK, surrogates typically receive £10,000-£15,000, although this will depend on the individual circumstances of a case.

Intended parents also have to factor in the cost of medical treatment at a UK licenced fertility clinic.

In addition, there will be costs to pay in relation to the legal process of transferring parentage from the legal parents to the intended parents, including court dues and solicitor fees. Our surrogacy lawyers can, in some cases, offer a fixed fee.

No. There will be costs to pay in relation to the legal process of transferring parentage from the legal parents to the intended parents, including court dues and solicitor fees. Our surrogacy lawyers can, in some cases, offer a fixed fee.

Surrogates can also be paid ‘reasonable expenses’. There is no clear definition or guidance in relation to what reasonable expenses might be. However, it would be common for surrogates to receive expenses related to her pregnancy, including travel to medical appointments, maternity clothes, and loss of income due to sickness absence or inability to work due to the pregnancy.

In the UK, surrogates are not permitted to be paid except in respect of reasonable expenses. Intended parents should therefore ensure that any payment or benefit conferred on a surrogate is modest and reasonable. Examples of reasonable expenses may be the cost of maternity clothes, any loss of earnings due to pregnancy-related sickness absence, and travel expenses to medical appointments, but of course this list is not exhaustive.

The consent of the surrogate mother (and her husband/civil partner if applicable) is central to the parental order being granted. In Scotland, that consent must be committed to prescribed forms.

The consent of the surrogate mother is only effective if given by her more than six weeks after the child’s birth. Although any previous notices of consent will be considered by the court, they are likely to limit the weight they attach to that consent. In effect, the surrogate mother can change her mind about giving consent to the handing over of the child at any point.

A surrogacy agreement is unenforceable if the surrogate mother does indeed change her mind. The intended parents are therefore in a precarious position throughout the process until it is complete.

The consent of the surrogate mother (and her husband/civil partner if applicable) is central to the parental order being granted. In Scotland, that consent must be committed to prescribed forms. The consent of the surrogate mother is ineffective if given by her less than six weeks after the child’s birth. Although any previous notices of consent will be considered by the court, they are likely to limit the weight they attach to that consent. In effect, the surrogate mother can change her mind about giving consent to the handing over of the child at any point. A surrogacy agreement is unenforceable if the surrogate mother does indeed change her mind. The intended parents are therefore in a precarious position throughout the process until it is complete. If the surrogate withheld her consent, a court action could still be raised by the intended parents and the court would determine the matter with consideration for the welfare of the child being the paramount consideration.

In order to legally transfer parentage, the intended parent(s) must lodge an application for a Parental Order at court within six months of the date of the child’s birth.

The child must already be living with the applicants, and be genetically related to one of the applicants. The surrogate mother (and her husband or civil partner if he or she consented to the insemination/implanting) must consent to the parental order being granted within a prescribed window of time. The granting of parental orders is not automatic.

The relevant legislation must be adhered to and the court will consider whether or not the granting of the order is appropriate in the circumstances of the case.

When a child is born through surrogacy, the intended parent requires to apply to the court for a parental order. Parental orders transfer legal parenthood from the surrogate (and her spouse or civil partner, if applicable and in certain circumstances) to the intended parents. A parental order can not be made in the absence of the surrogate’s consent.

The parental order process takes place after the baby is born. The majority of surrogacy cases in Scotland and the UK are straightforward and it is rare that consent is withheld by the surrogate, or for a parental order to not be considered in the best interests of the child.

The essential criteria for a parental order to be granted are:

• The intended parent(s) must be over 18 years old
• The intended parent(s) may be married, in a civil partnership or living as partners in an enduring relationship, or they can be a single individual.
• The surrogate, and her spouse/civil partner if applicable, must give consent. The consent cannot be validly given earlier than 6 weeks after the birth of the baby.
• The child must have been conceived artificially, and be genetically related to one of the intended parent(s).
• The child must be living with the intended parents.
• The application for a parental order must be made within six months of the child’s birth.
• The intended parent, or one of the intended parents if a couple, must be domiciled in the UK
• The surrogate should be paid no more than reasonable expenses, unless authorised through the court process.

If all the legal criteria are met, the court’s paramount consideration in decided whether to make the parental order is the child’s welfare.

The legal process of applying for a Parental Order for same sex couples who wish to become parents through surrogacy is exactly the same as for opposite sex couples.

The legal process of applying for a Parental Order for single individuals who wish to become parents through surrogacy is exactly the same as for couples.

The first step for anyone considering entering into a surrogacy arrangement is to contact one of our specialist surrogacy solicitors to take expert advice on the process and potential implications for you. Once you are ready to proceed, you will then require to find a surrogate and embark on assisted conception treatment and the signing of relevant consent forms. Some people will also enter into written agreements about how their arrangement will work. However, such agreements are not legally-binding or enforceable and a surrogacy lawyer will not be able to assist with that.

Once the baby is born, the legal process of applying to transfer parentage from the legal parents to the intended parents can begin.

We are a team of family law solicitors specialising in surrogacy and fertility law. We provide advice to both surrogates and people looking to have a child via surrogacy.

We can assist you with:

• General information and advice about the surrogacy process
• Advice on the legality of the arrangement you have reached with the other parties involved.
• Advice on legal parenthood, and your rights and responsibilities as a surrogate or as the intended parents.
• Applying to court on your behalf for a Parental Order to acquire legal parenthood
• Advice on other methods of acquiring legal parenthood, such as an adoption order
• Advice on associated matters such as parental responsibility and rights, residence and contact disputes, and Specific Issue Orders

If you are looking for assistance in relation to surrogacy or assisted conception, contact our Modern Families team for advice and representation.