Expert Answers UK's Most Commonly Asked Surrogacy Questions for National Surrogacy Week

In light of National Surrogacy Week 2023, Anuradha Kurl, partner and solicitor at Crisp & Co, has answered the most commonly searched surrogacy questions in the UK.

In 2019, National Surrogacy Week, 1^st-7^th August 2023, was established to increase awareness, educate the public, and celebrate ethical practices. As part of this initiative, we are pleased to offer expert legal insights and perspectives on surrogacy in the UK.

Most Frequently Asked Questions Regarding Surrogacy

Using the keyword research function on Ahrefs, which leverages Google search data, we conducted a search for the term 'surrogacy' and delved into key questions associated with this topic. Our exploration revealed the most popular questions, along with their corresponding search volumes:

• What is Surrogacy? – 1.2k searches
• How Does Surrogacy Work? – 900 searches
• How Much is Surrogacy in the UK? – 500 searches
• What Does Surrogacy Mean? – 200 searches
• Where is Surrogacy Legal? – 90 searches

Anuradha Kurl, Partner and Solicitor at Crisp & Co, has provided the following answers to these questions.

What is Surrogacy? / What Does Surrogacy Mean?

Surrogacy is a method of assisted reproduction where a woman carries and gives birth to a child for another person, or another couple. Surrogacy is often pursued by individuals or couples who are unable to conceive or carry a pregnancy to term on their own due to various reasons, such as infertility, medical conditions, or same-sex couples.

In the UK, surrogacy is an accessible and relatively affordable method of having a child. However, strict laws mean that surrogacy agreements are not legally binding, so they are based on trust between the surrogate and the intended parents.

There are two different types of surrogacy arrangement including:

• Traditional/ Straight Surrogacy - Where the surrogate will be the child’s biological parent. The surrogate’s own egg will be used with the sperm of the intended father.
• Gestational Surrogacy - Where the surrogate has no genetic link to the child. The egg and sperm could be from the intended parents, or the child might be conceived with an egg or sperm from a donor.

When using a surrogate, it's crucial to keep in mind that the surrogate will be legally recognised as the child's parent upon the child's birth, regardless of the method used. The intended parents must obtain a Parental Order, where at least one of the intended parents must be biologically related to the child.

How Does Surrogacy Work in the UK?

Surrogacy in the UK is regulated by specific laws and guidelines. Here is an overview of how surrogacy works in the UK:

Adhering to Legal Framework

Surrogacy in the UK is governed by the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008. These acts outline the legal framework and provide guidance on the rights and responsibilities of the parties involved.

Being Eligible

In the UK, surrogacy is available to individuals or couples who are unable to carry a pregnancy themselves due to medical reasons, same-sex couples, or individuals who have a genetic condition they don't want to pass on.

The criteria for intended parents (IP’s) must be:

• At least 18 years old
• IPs may be married, in a civil partnership or living as partners in an enduring relationship or they can be an individual regardless of relationship status
• the surrogate, and her partner if they are married or in a civil partnership, must give consent (no 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 IPs, or the IP if an individual applicant
• the child must be living with the IP(s)
• IP(s) must apply within 6 months of the birth of the child
• At least one of the IPs in a couple, or the IP if an individual applicant, must be domiciled in the UK
• the surrogate should be paid no more than reasonable expenses, unless authorised by the court

Having Surrogacy Agreements in Place

Surrogacy agreements in the UK are not legally binding but are still important for establishing intentions and expectations. These agreements should be prepared with the help of experienced surrogacy law professionals.

At birth, the surrogate is considered the child's legal parent. If the surrogate is married or in a civil partnership, their spouse or partner is the second legal parent, unless they did not give consent. Legal parenthood can be transferred through a parental order or adoption after the child's birth. In the event of a dispute over legal parenthood, the court will make a decision based on what is in the best interest of the child.

It is important to understand that surrogacy regulations and procedures can differ in various regions of the UK, as family law is devolved to each country, including England and Wales, Scotland, and Northern Ireland. It's advisable to seek legal advice and consult relevant local authorities to navigate the surrogacy process effectively.

Parental Order Process

The parental order process is a necessary step after the birth, wherein legal parenthood is transferred from the surrogate to the intended parents. Prior to embarking on their fertility journey, it is highly recommended that both parties - the surrogate and intended parents - obtain legal advice to gain a comprehensive understanding of the implications, consequences, and potential issues that may arise from entering into a surrogacy arrangement.

How Much is Surrogacy in the UK?

In the UK, it is legal to engage in altruistic surrogacy as long as the proper procedures are followed. However, commercial surrogacy is not allowed. Altruistic surrogacy refers to those surrogacy agreements where the surrogate does not receive monetary compensation. intended parents are only allowed to pay the surrogates ‘reasonable expenses.’ However, there isn’t an exact definition of ‘reasonable expenses’.

As each case is unique, and what is deemed reasonable will vary depending on the specific circumstances of the case. The court typically recognises certain expenses as valid, such as:

• The surrogate’s loss of earnings
• The surrogate’s partner/spouse’s loss of earnings
• Additional childcare to support pregnancy and clinic/antenatal visits
• Help with additional cleaning to support pregnancy
• Additional food and other supplements
• Additional classes or therapies to support pregnancy
• Travel and accommodation before, during and after pregnancy
• Maternity clothes
• A modest recovery break for the surrogate and her family
• Other incidental expenses that relate to the treatment and pregnancy

Typically, in a surrogacy agreement, it is recommended that both parties estimate their expenses beforehand. By doing so, they can agree on a specific amount for expenses, which can be outlined in the agreement. This helps ensure that payments are made as needed throughout the pregnancy.

Where Surrogacy is Not Permissible

It is important to mention that engaging in commercial surrogacy is against the law and classified as a criminal offence. This includes the following:

• To advertise that you are looking for a surrogate or willing to act as a surrogate
• For third parties to advertise that they facilitate surrogacy (although there are some exemptions for not-for-profit organisations)
• For third parties to negotiate the terms of a surrogacy agreement for any payment (for example a solicitor cannot assist with agreeing to the terms)

Where is Surrogacy Legal?

Surrogacy laws vary significantly across countries. While some countries have comprehensive regulations and laws in place to govern surrogacy, others may have limited or no legislation on the subject. Below is an overview of some of the countries where surrogacy has legal status.

United States: Surrogacy laws vary by state, and some states have more favourable regulations than others. States such as California, Nevada, and Illinois have established legal frameworks that are generally considered surrogacy friendly.

Canada: Although commercial surrogacy is illegal, the Assisted Human Reproduction Act (AHRC) allows for altruistic surrogacy. This means that gestational carriers can be reimbursed for approved expenses, but they cannot receive any other form of payment or compensation. Compensation is limited to reasonable expenses. In Quebec, surrogacy contracts, whether commercial or altruistic, are not enforceable by law.

United Kingdom: Surrogacy is permitted, but commercial surrogacy is illegal. Only reasonable expenses can be paid to the surrogate.

Ukraine: Surrogacy is well-regulated and widely accessible. Ukraine has become a popular destination for international surrogacy due to its favourable legal framework.

Mexico: Surrogacy, along with ovum and sperm donation, has been legal in the country of Mexico since 1992. A donor or gestational carrier has no parental rights over such a child.

Greece: Greece has established laws that allow both altruistic and commercial surrogacy under certain conditions.

Are Surrogacy Laws Outdated in the UK?

Following on from Anuradha Kurl’s responses to the most commonly searched questions, it is evident that various countries uphold distinct standards and practices concerning surrogacy. In regard to surrogacy regulations in the UK, Anuradha states:

“The UK's surrogacy law desperately needs modernisation to ensure that surrogacy agreements are consistent, clear, and safe.

“The problem lies in the law's heavy reliance on trust. Even if the child is genetically related to the intended parents, the legal parent is the surrogate when the child is born. As a result, intended parents miss out on crucial moments, such as being present at birth and being involved in making medical decisions. Granting legal parentage at birth would eliminate risks for both the surrogate and intended parents.

“Unfortunately, the current UK laws have driven some prospective parents to seek surrogacy opportunities abroad. We’re aware the Law Commission currently has surrogacy reform under review, but these are only recommendations rather than legally binding changes. We hope the Government will adopt these proposals designed to dissuade UK couples from opting for international surrogacy agreements.

“In the meantime, while foreign options may seem appealing, they come with their own risks, including complex legal regulations that many intended parents are unaware of, leading to potential legal conflicts.

“The fundamental issue with the current UK laws is that they fail to prioritise the best interests of the child after birth, let alone the Intended Parents and surrogate mother involved. The decision to have a baby via a surrogate mother is becoming increasingly popular in the UK and should be celebrated and supported accordingly by law.”

Further Questions

If you have any further questions about surrogacy in the UK that have not been addressed, please check out our surrogacy page for further details on the following questions:

• Will Intended Parents be Named on the Child’s Birth Certificate?
• What is a Parental Order?
• Can the Surrogate Decide to Keep the Baby?
• What is Involved with the Surrogacy Process?

Get In Touch With Our Surrogacy Solicitors

If you are considering surrogacy, it is essential to consult a family law specialist with experience handling these types of cases to make sure you fully understand your legal rights.

At Crisp & Co, we are a dedicated firm of family lawyers with expertise across a range of complex children-related services, including surrogacy, adoption, artificial insemination, legal parenthood and parental responsibility matters.

We cater to every individual with particular expertise in advising LGBT+ couples.

For expert advice, get in touch with our surrogacy solicitors or fill in our online enquiry form for a quick response.