Written by: Rebecca Knight
Types of surrogacy
Straight surrogacy – also known as traditional surrogacy
According to research, the straight surrogacy process is the simplest and often the least expensive form of surrogacy. The surrogate uses an insemination kit to become pregnant using the intended father’s semen. The surrogate will donate one of her eggs to enable insemination to take place. This process can be done at home although, most people entering into such an arrangement prefer to undertake this process through a clinic, although it is completely down to personal preference. The benefit of the involvement of a surrogacy clinic, is that the arrangement can feel more professional and less emotional and the clinic should ensure that all necessary paperwork is completed at the appropriate stages.
Host surrogacy – also known as gestational surrogacy
This involves IVF using either the eggs of the intended mother, or use of donor eggs. The egg of the surrogate is not used which means genetically, the baby would be unrelated to the surrogate. This requires more involvement of health professionals meaning that there is a higher cost involved with the same. The egg donor or intended mother, undergo procedures to extract a number of eggs with are then fertilised with semen either by the intended father or sperm donor. The fertilised egg is then transferred to the womb of the surrogate. This process would take place at a fertility clinic.
How long does surrogacy take?
This, unfortunately, is not a question that can easily be answered. There are several factors that will play a part in this process, such as, finding a suitable surrogate, the type of surrogacy that you wish to enter into, the successfulness of the insemination process etc. If using a fertility clinic, they will be able to offer a better anticipated timeframe for all involved.
How much will surrogacy cost?
In the UK, the law is very clear insofar as the surrogate is not to receive payment for entering into a surrogacy agreement. However, the law does permit for surrogates not to be left out of pocket and making payments of reasonable expenditure is perfectly acceptable.
It is important that any payments that are to be made can be justified, and it is very important that the intended parents protect their position by entering into a surrogacy agreement setting out the payments that the surrogate can expect to receive by way of reasonable expenditure. In essence, the surrogate cannot be expected to be out of pocket for entering into the surrogacy agreement but cannot be paid or seen to make a profit for being a surrogate for the intended parents. The UK average for surrogacy expenses ranges from £6,000 to £15,000, however, factors can determine the payments that are to be made. No more than reasonable expenses can be made, unless authorised by the Court.
This does not include the cost of legal fees associated with applying for a parental order following the birth of the child or any associated expense with a successful pregnancy in the first instance.
Some parents enter into foreign/international surrogacy arrangements which have a far greater cost and also have a commercial element to them. Whilst, in those jurisdictions, such arrangements may be legal, it is important that any intended parents looking to enter into a commercial/foreign agreement seek legal advice in the first instance in relation to the issue of payments as this will require the Court’s authorisation after the event.
What do the Intended Parents need to do to ensure that the surrogacy is appropriate for them?
Surrogacy arrangements in theory, could be open to anyone, especially if it is to be considered away from a fertility clinic however, there are certain legal criteria that needs to be considered to ensure that the intended parents of a surrogacy arrangement stand the best chance of becoming the legal parents of the child. To ensure that the intended parents satisfy the law to apply for a Parental Order, the following must take place: -
· Both intended parents must be over 18 years old
· The intended parents must be in a stable, long term relationship this includes, since 2010, unmarried and same sex couples.
· At least one of the intended parents must be biologically related to the child, i.e. either through the sperm or egg;
· At least on of the intended parents must be domiciled in the UK, Channel Islands or Ilse of Man;
· The conception must have taken place artificially, i.e. either straight or host and at home or at a clinic.
Is a surrogacy agreement legally binding?
In a nutshell, no. The surrogate, at any stage, could refuse to hand over the child when it is born. The intended parents will need to apply to the Court (which they are required to do anyway) after the baby is born and can seek to rely on the surrogacy agreement if there were to be difficulties with who should care for the baby after the birth which is dealt with in more detail below.
If a surrogate changes her mind in relation to the child and wishes to keep the same, the intended parents can still apply for a Parental Order but it may be that the Court would need to consider the case in the context of who the child should live with as opposed to simply considering whether a Parental Order should be granted and other areas of Family Law would then come into play.
How do the intended parents become the legal parents of the child?
At the point of the baby being born, the surrogate will be deemed as the legal mother even if the surrogate is not genetically related to the child. If the surrogate has a husband at the time of the birth of the child, then he will be considered as the legal father. If the surrogate is unmarried, then the legal father can be named on the child’s birth certificate.
To enable the intended parents to become the legal parents of the child, they need to apply to the Court for a Parental Order. If successful in this application, this would reassign the parental responsibility from the surrogate (and her husband if she has one) to the intended parents. This would provide the intended parents will full parental status and parental responsibility.
In addition to the factors set out above, the intended parents must also ensure that:
· The child must have his or her home with the intended parents at the time of the application for a parental order being made.
· The surrogate and her husband (if applicable) must fully and freely consent to the making of a parental order. The surrogate cannot give her consent until the child is 6 weeks old.
The Court process, if uncomplicated and there is no issue of consent can take a matter of weeks, however, it can become more difficult if there is an issue with consent. The Court will order the child to have a Guardian appointed who will undertake an assessment as to whether a Parental Order should be granted, or if there is an issue with consent, it will consider with whom the child should live.
Surrogacy arrangements can be a wonderful opportunity for a family to feel complete, however, they can be difficult and risky due to the legal status of the surrogate. It is therefore always strongly recommended that anyone, whether that be an intended surrogate or the intended parents seek legal advice prior to entering into an agreement and throughout the process itself.
If you are considering entering into a surrogacy agreement and would like to discuss this further with our team of specialist lawyers, please see our contact information below;
T: 029 2034 2233
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