Surrogacy in the UK

Surrogacy agreements are not
legally binding

Surrogacy agreements are not enforceable in England and Wales. Therefore, in respect of giving the child to the intended parents, and dealing with expenses and other issues, it is important that the parties respect the agreement into which they have entered.  It is not possible for a third party, such as a solicitor, to negotiate the surrogacy contract about payment.

Some parents worry about what may happen if a surrogate wants to keep the baby after birth. Understanding between both parties is important, and although an agreement is not technically legally binding, it can clarify matters and promote good communication. There are many surrogacy arrangements every year in the UK and such problems are rare.

If there is a dispute about who should look after a child after birth, a party can make an application to the court under the Children Act, for a Child Arrangements Order.  Yes, there are some reported cases in this area of law, but applications are rare. The court deals with each case on a case by case basis, as each is unique and reflects different situations. The court has to consider a child’s best interests, and there have been cases where a surrogate has been allowed to keep a child, and other cases where a child has been transferred to the intended parents.

Payments for
UK surrogacy

Fertility Clinics

Advertising

It is an offence to advertise that you are looking to engage with a surrogate mother, wanting to act as a surrogate mother or for a third party to facilitate the making of a surrogacy arrangement, if it is not a non-profit-making organisation.

Surrogacy agencies

It is a criminal offence for a third party to receive payment for arranging surrogacy, although there is an exemption for non-profit-making organisations. There are some non-profit agencies, who work within the rules.

Treatment at UK fertility clinics

The Human Fertilisation and Embryology Authority’s Code of Practice sets out the obligations of UK fertility clinics dealing with surrogacy treatment.

Legal parenthood

Special rules on legal parenthood apply when treatment takes place at a licensed fertility clinic. The Human Fertilisation and Embryology Authority have helped these clinics to update guidance, which makes clear that:

• the surrogate is the legal mother of the child
• if the surrogate is married, she and her husband or wife or civil partner are the legal parents. In rare cases where it can be shown that the surrogate’s spouse/civil partner does not consent, the surrogate can complete Form LC to explain the circumstances. Form LC cannot be used routinely as a way of excluding the spouse from being a legal parent but it can negateparenthood if the spouse genuinely does not consent
• if the surrogate is not married (or her spouse does not consent to the conception) there is a choice as to who is the second parent.  The biological father is the legal father if no HFEA parenthood forms are signed. Alternatively, someone else (usually the intended mother or the non-biological father) can be nominated as the other parent by using HFEA Forms SWP and SPP. The forms must be signed after counselling and before conception. It is not possible to nominate the surrogate’s sibling, parent or child as the other parent

Clinic obligations to surrogacy patients

Fertility clinics have to get appropriate consent to treatment from both intended parents, the surrogate and her husband or partner. There are specific HFEA forms for surrogacy.

Counselling

Counselling should be offered to all involved in a surrogacy arrangement.