• 02 May 2024
• •
• 6 min read

Things to think about when considering a surrogacy arrangement

Starting a family is extremely exciting but it can also be quite stressful if you have the added complication of conceiving with the assistance of a surrogate. A joyous occasion can sometimes seem overwhelming as there are so many things to think of. As well as the usual ’to do‘ list that all new parents face, there are legal implications when conceiving with a surrogate. We hope that this article will help flag up some of the legal factors to keep in mind.

Can we enter into a surrogacy agreement?

The key legal issues are dealt with after the birth rather than before in the UK. A UK surrogacy agreement is not legally binding and so it is unenforceable but can still be very helpful and should be considered prior to proceeding with any surrogacy arrangement. Our view is that it is a good idea to put things in writing at the outset to help you all (intended parents and surrogate) be clear about what you have agreed and to work through any potential difficulties at the outset. In the UK, a surrogacy agreement cannot be prepared by a lawyer on your behalf as it is an offence for surrogacy to be commercialised in the UK. However, you can prepare one yourself or obtain support from a non-profit surrogacy organisation.

Who are the legal parents of the child(ren) born to a surrogate?

The surrogate (and her spouse) will initially be the legal parents of the child, and the intended parent(s) will need to make an application to the Court, after birth, to transfer legal parenthood to them.

Many intended parents worry about what would happen if their surrogate wanted to keep the baby; equally, many surrogates worry about what would happen if the intended parents did not assume responsibility after the birth. In reality, these problems happen very rarely. Even though an agreement is not legally binding, putting things in an agreement helps to avoid ambiguity and improves communication between everyone involved.

Ultimately, if there is a dispute about who should care for the child after the birth, an application can be made to the family court for a child arrangements order. This is the same process that would be adopted if a couple were separating and they needed help with the arrangements for the children. Each case is dealt with individually and the Court’s sole focus is on assessing what is in the child’s best interests.

Who registers the birth of the child(ren)?

If the child is born in England or Wales, the surrogate is responsible for registering the birth and will be registered as the ‘mother’. The surrogate can, however, register the child with the intended parents’ surname if she chooses to.

The surrogate’s spouse/civil partner will be registered as the ‘father’ or second ‘parent’. This applies unless it is ‘shown’ that the surrogate’s spouse/civil partner did not consent to the conception.

If the surrogate is not married or in a civil partnership, then the other legal parent (one of the intended parents) can be registered as the father or second parent, provided he/she attends the birth registration. If that intended parent is not the biological father, he/she may need to produce the Human Fertilisation and Embryology Authority (HFEA) forms signed before conception to confirm he or she was properly nominated to be the legal parent.

After registration, the intended parent(s) then apply for a parental order.

Why do you need a Parental Order?

The parental order is needed to permanently change the legal parents. The parental order terminates the responsibilities of the surrogate and her spouse and makes the intended parents the legal parents of the child. The child then receives a new birth certificate which names the intended parents as the child’s parents.

What criteria need to be satisfied to obtain a parental order?

To obtain a parental order, the intended parent(s) must satisfy the Family Court that they meet all the criteria set out in section 54 (for couples) or section 54A (for single parents) of the Human Fertilisation and Embryology Act 2008, which are:

1. The conception must have taken place by embryo transfer or artificial insemination, and the child must have been carried by a surrogate who is someone other than the intended parent(s).
2. The intended parent (or if a couple at least one of them) must be the child’s biological parent.
3. If the intended parents are applying as a couple they must be married, civil partners or living as partners in an enduring family relationship. Single applicants do not have to meet any relationship status criteria.
4. The intended parents must submit their application to the court within the six months after their child is born (although the court can extend the deadline in certain circumstances).
5. At the date they apply and the date the order is made, the child must have his or her home with the intended parent(s).
6. At the date they apply and the date of the order, the intended parent (or if applying as a couple at least one of them) must be ‘domiciled’ in a part of the United Kingdom, Channel Islands or Isle of Man. Domicile relates, not just to where parents are living or to their citizenship status, but to a much wider assessment of where their permanent home is. 
7. The intended parent(s) must be over 18 when the order is made.
8. The surrogate and her spouse must fully and freely consent to the order (unless they cannot be found or are incapable of giving consent). The surrogate’s consent is invalid if it is given before the child is six weeks old.
9. Either no more than reasonable expenses must have been paid, or the court must agree to ‘authorise’ any payments of more than expenses retrospectively. The court takes a broad and flexible approach to expenses in UK surrogacy cases. In international surrogacy cases where there is very clearly compensation beyond expenses being paid to the surrogate and the overseas agency, the court also has a long history of explicitly authorising payments retrospectively. 

If the court is satisfied that the eligibility criteria are met, it will then go on to consider whether the making of a parental order is in the child’s best interests. The Court has to be satisfied that there are no safeguarding risks to the child if an order is made.

Why is it important to have a will when agreeing to be a surrogate?

It is always advisable to review your will when a life changing event happens, such as a birth or marriage. However, in the event of entering into a surrogacy arrangements, it is vital your will is reviewed.

A will is an important legal document that lets you choose who deals with your Estate, otherwise known as Executors, who inherits your Estate, otherwise known as Residual Beneficiaries and who may look after your children if you pass away before they turn 18, otherwise known as Guardians.

With most families, the Law gives certain protection to spouses and their children, if a parent dies without having a will. This is otherwise known as the Intestacy Rules.

However, those protections do not currently exist in surrogacy cases. This is due to the fact that the intended parents, are not automatically classed as the legal parents of children born through surrogacy. Instead, as outlined above the surrogate and her spouse are classed as the legal parents, until legal parenthood is reassigned.

If one of the parties involved in a surrogacy agreement, dies before a Parental Order is granted, the default rules may benefit the incorrect people. This would include the surrogate child automatically inheriting from the surrogate’s estate. They would have no automatic right to claim from the intended parents’ estate. This is because they are not considered a ‘child’ of the intended parents until after the Parental Order is made.

However, this can be resolved by simply updating your existing will. By updating your will, you can confirm your intentions and enable both the surrogate and the intended parents, to provide detail as to their wishes in relation to guardianship and inheritance as well as other matters.

What should I include in my will?

In relation to surrogacy, what your will should contain, will be dependent on whether you are the intended parents or the surrogate. Either way, it is prudent that in both cases, the will contains the following provisions:

• Guardianship appointment – the intended parents will need to appoint Guardians who will look after their child, if they died before they turned 18. For the surrogate, it would be sensible to appoint the intended parents to care for the child in the event of their death, rather than a spouse or any other member of the family.
• Inheritance – as explained previously, a surrogate child will not automatically inherit from the intended parents estate. As such, the intended parents, will want to ensure that their will has provisions for the child to ensure their wishes are met. For the surrogate, they may wish to exclude the child they are carrying by way of surrogacy to ensure that child does not automatically inherit from their estate and as such have an impact on their own family’s inheritance rights.
• Surrogacy expenses – currently, there is no clear legal framework as to surrogacy expenses and payment in relation to surrogacy arrangement. If the intended parents died before all of the agreed expenses have been paid, the surrogate is not automatically entitled to this from the intended parents’ estates. The sensible solution therefore is for the intended parents to provide a gift in their will in relation to outstanding expenses being paid to the surrogate.

Surrogacy rules and practicalities are complex and vary depending on the specific family make-up of the surrogate and the intended parents. As such, it is important that both intended parents and surrogates seek legal advice and update their wills to ensure everyone’s wishes are met.