A BBC article explores the “highs and lows” of a surrogate’s journey through the process.
The surrogate in question had undertaken surrogacy in the US, (Pennsylvania), but marked a useful reminder of some of the key considerations that apply from the prospective of a surrogate or someone considering whether to act as surrogate.
The law on surrogacy differs significantly between countries, so the experience of a surrogate will often differ, depending where the arrangement takes place. This blog is based on the law here in England and Wales.
There are two types of surrogacy:
- where the surrogate is biologically related to the baby, and
- where there is no biological link.
It sometimes surprises people to know that the legal position as between the surrogate and the Intended Parents is the same, regardless of which of those two arrangements applies.
Key things for anyone considering whether to act as surrogate include:
- Consider carefully the “match”
Some Intended Parents want and intend a close and lasting relationship with their surrogate. Others envisage staying in touch, but at arm's length – perhaps the odd update over the course of the child’s life. Others do not want or intend to have any continuing contact. It is crucial to ensure that the hopes and expectations of the Surrogate and Intended Parents align, to avoid upset or confusion down the line
- Don’t underestimate the importance of counselling
Surrogacy arrangements can bring about a complex range of emotions, Many clinics insist on a form of counselling before treatment takes place, but of course this does not apply to informal arrangements. Exploring some of the feelings that might arise, ahead of time, can be an invaluable part of deciding if it is right for you.
- You cannot advertise your services as a surrogate
Whether on social media on more traditional forms of media (such as newspapers) it is illegal to advertise surrogacy services. Penalties for doing so can includes fines or even a prison sentence. In light of this, many surrogates meet intended parents organically through friends and family. Some surrogates also meet intended parents through non-profit surrogacy organisations or travel overseas to countries where advertising surrogacy services is not illegal.
- You can only be paid “reasonable expenses” as a surrogate
It is a common misconception that surrogates in England and Wales will effectively be paid a salary for being a surrogate. Reasonable expenses include things like the surrogate's loss of earnings, maternity clothes, therapy and travel and accommodation expenses, to name a few.
- You are the child’s legal parent at birth
The surrogate mother is the child’s legal parent at birth and, if married or in a civil partnership, her spouse is the second legal parent. Legal parenthood can only be transferred away from the surrogate by way of a Parental Order or adoption, so it is crucial to check in advance that the Intended Parents will qualify for a Parental Order before the arrangement takes place.
- Surrogacy Agreements are not legally binding (but are important!)
It is not mandatory to have a surrogacy agreement, and even if you do, the agreement itself is not legally binding. A surrogacy agreement does not alter legal parenthood, and it cannot be enforced if there is a dispute in the future either about the arrangement, or who should care for the child. Despite this it is always advisable to have one; the process of preparing the agreement helps to ensure you and the Intended Parents are ‘on the same page’ about what will happen and to iron out potential issues ahead of time, it is also important evidence of what was intended in the event of any future dispute.
Our family law team have many years’ experience of assisting and advising surrogates and Intended Parents, from straightforward arrangements, to situations where complex problems have arisen. If you would like advice in relation to surrogacy, please contact a member of our family team for more information.
