Most people don’t think about surrogacy until a high-profile case hits the headlines, a celebrity such as Kim Kardashian uses a surrogate, or surrogacy is part of the plot in a popular TV series. It can be daunting for people considering surrogacy when their only exposure to the process is via fictional dramas or celebrity gossip. Thankfully most surrogacy arrangements are far less problematic than in the movies, but often not as simple or smooth as a celebrity might make them appear. In this article, we will answer some of the most commonly asked questions about the legal side of surrogacy in the UK. If you’d like a more personalised answer to any surrogacy or fertility question, head over to our Instagram or Facebook pages and leave a question for our experts to answer.
Best Fertility Now suggests looking into these great agencies and charities when doing your research on surrogacy
The earliest recorded example of surrogacy appeared in the bible, but it wasn’t until 1976 that the very first legal surrogacy contract was drawn up by a lawyer. People considering surrogacy, either as a gestational carrier (the modern term for a surrogate mother) or as an intended parent, may be confused by the legal aspects of the process at first. However, perhaps because it’s been happening for thousands of years without legal contracts, UK law regarding surrogacy is fairly easy to understand and comply with.
The official number of surrogate births in the UK has roughly tripled in the last ten years, and the industry worldwide is worth an estimated 4.7 billion dollars a year. Despite the substantial sums of money that are often involved, some surrogacy arrangements are successfully made without any money changing hands, or even an official agreement of some kind, and this too can be completely legal. Most people prefer some kind of formal agreement, and of course, the transferral of parenthood from the surrogate mother to the baby’s official parents must be legal and official.
What are the different types of surrogacy?
There are two basic types of surrogacy:
- Gestational or host surrogacy – this is when the gestational carrier (pregnant person) is implanted with an egg and sperm from donors. The baby is not genetically related to the gestational carrier.
- Traditional surrogacy – the gestational carrier uses their own egg and donor sperm. In this case, the gestational carrier is genetically related to the baby.
When the baby is born, who is automatically the baby’s legal parent?
The law considers the gestational carrier of the baby the legal parent. This applies whether the surrogacy was gestational or traditional, and whether the baby is related to the mother or not. This can only be changed by parental order or adoption.
Can I use a surrogate from abroad?
The short answer to this question is yes, it is legal for you to travel to another country to find a surrogate. However, surrogacy within the UK is a lot less complicated.
Can I go to any country for this?
Worldwide, countries have widely varied views on surrogacy. In Germany and France, the practice is illegal on the grounds that it is exploitative. The Ukraine on the other hand, has a booming surrogacy industry, with gestational carriers able to earn a substantial living compared to the national average. Each US state has its own regulations and rules.
Some countries such as (but not limited to) Kenya and Nigeria are largely unregulated, and experts believe that women in these areas are most open to exploitation. When a relatively wealthy country does not allow surrogacy to take place, or when the practice is too costly for an individual or couple, this can lead to prospective parents traveling to less regulated countries to find gestational carriers. Some countries have closed clinics to “fertility tourists” on the grounds of exploitation, while other countries do not regulate surrogacy arrangements between their citizens and foreigners at all.
It’s important to remember that each country has its own laws and regulations around surrogacy and that serious legal issues can arise, even if the surrogacy arrangement is entirely successful. This is one area of surrogacy where comprehensive legal advice is absolutely necessary.
Is it legal to pay a surrogate in the UK?
The UK takes the view that surrogacy should not be a commercial enterprise, and that undergoing a pregnancy for another individual is an act of altruism – a gift. This means that the gestational carrier should only receive expenses, rather than making a profit. However, there are no hard and fast rules on what these expenses should be, provided they are reasonable.
Will my arrangements with my gestational carrier be legally enforceable?
Surrogacy agreements are not legally enforceable in the UK, and the law states that the person who gave birth to the baby is the baby’s mother. This applies even if the prospective parents have paid the gestational carrier’s expenses.
This potentially precarious legal situation has inspired courtroom dramas and outlandish storylines, but generally, the gestational carrier does not have a change of heart last minute and decides to keep the baby. However, this is a very real risk with every surrogate birth in the UK.
What happens if the gestational carrier decides to keep the baby?
If this happened, it would then be up to the courts to decide the best interests of the child, which may or may not lead to the child remaining with its legal parent. This is one of the many reasons why experts recommend that everybody within a surrogacy arrangement requires ongoing emotional support, and why surrogacy arrangements should be well-managed. This is not a legal requirement, but it’s highly recommended.
If it’s not supposed to be a commercial enterprise, why is it so expensive?
Surrogacy can be very expensive, relatively inexpensive, or it can be free. It depends entirely on your arrangements. Some people have a family member that is willing to be a surrogate for them for free. Some gestational carriers feel called to carry a child for a childless couple and can afford to do this independently. Some women have a genuine desire to help a childless couple, but cannot afford a drop in income and require expenses to pay their bills and mortgage. There are wealthy couples who would prefer their surrogate to be pampered and looked after during their entire pregnancy and are happy to pay for this. Every case is unique & there is no one size fits all list of expenses or solutions. However, some of the common reasons for UK surrogacy costing typically in the range from £20,000 – £60,000, are:
- Finding a surrogate
- Using an agency to help with the process
- Legal fees
- IVF and other medical expenses
- Egg and/or sperm donation
- Surrogate’s personal expenses
- Complementary therapies or a special diet during pregnancy
Expenses that are not legal in the UK:
- A fee for providing surrogacy
- A ‘bonus’ upon completion of the adoption process
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