When you are looking at ways to build your family, hiring a lawyer is likely the last thing on your mind.
However, common questions include what does a solicitor do within the surrogacy process and when do you need them?
It is important to understand that exactly what you need a lawyer for, and at what stage, will vary significantly according to where your surrogacy arrangement takes place, and what country or countries you have links with. It is important to check what the requirements are in any country that may be relevant to you.
It is also important to find out how the different laws and procedures gel together, so you can make sure you need to do everything in the right place and at the time right time.
In this blog, we set out how a solicitor fits into the surrogacy process in England and Wales. It is important to remember that in many other countries, there are different requirements.
It is highly advisable to have legal advice before you enter into any surrogacy arrangement. This is so you can make sure that everything you do is within the scope of what is allowed, but also, importantly, to ensure that the law will apply how you expect, with the right people being able to be legal parents and have parental responsibility further down the line.
If you are using a fertility clinic, it is usual for them to insist that both the Intended Parent(s) and the Surrogate have independent legal advice before treatment starts. At this stage, the main priority is to ensure you understand the legal framework and who has what legal rights throughout the process, and to ensure the Intended Parent(s) will be eligible for a Parental Order further down the line.
Contrary to what you might expect, a solicitor cannot get involved in negotiating or drafting the surrogacy agreement itself, as this is considered commercial activity, which is still prohibited in England and Wales.
Having legal advice before entering into an agreement will help you think about the kind of things you will need to consider and cover. The surrogacy agreement is not in itself legally binding and does not attribute parenthood, so it is not a legally complex document. This is of course very different to a lot of countries, where the agreement is binding and is very much part of the legal process.
It is also important to consider speaking to a solicitor about Wills and inheritance issues at an early stage, to make sure all the adults, and the baby, are protected for the duration of the pregnancy through to the parental order.
This is to make sure the right people inherit and have financial protection, and to deal with who would care for the baby in the event of anything unexpected happening.
If you have any international links, or your arrangement is an international arrangement, you should also seek immigration advice right at the start, to make sure everyone can be where they need to be for the birth and afterwards, and that you will be able to travel home, and remain here.
Travel documents, even temporary ones, can take some time to get, so understanding the requirements and process from the start can minimise delay, as well as reduce the risk of unexpected problems arising.
In the usual course of events, after the initial planning and preparation stages it will not be necessary to involve a solicitor until after the baby is born and you are ready to apply for the parental order.
Again, in some countries there are important pre-birth legal requirements to deal with, but here, you can only commence the process for the transfer of legal parenthood after the baby is born.
Once the baby is born, a solicitor can help you prepare the parental order application and the supporting documentation, including witness statements and if required, can represent you within the court process. Once the order has been made, a solicitor can help with any passport or citizenship applications, and/or help you update your Wills to reflect the change of legal status.
Disputes between Intended Parents and Surrogates are still very rare, but do occur occasionally. In the event of any disagreement, especially in relation to who will care for the baby, and/or spend time with him or her, a solicitor can advise and where necessary, represent you within that dispute, though happily for the vast majority of people, this is never needed.
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.
