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Surrogacy – what you need to be aware of before entering a surrogacy agreement

For any couple considering having a child through surrogacy (‘intended parents’) there are some very significant elements both legal and practical that the couple should be aware of before pressing ahead.  In fact, because surrogacy is increasingly international in nature, surrogacy agreements can be fraught with complicated legal implications and conflicts between national and international law.

Different countries have different surrogacy laws.  For example, in some countries it is legal and perfectly normal for a surrogacy agreement to be a commercial ‘contract’ between the surrogate and the intended parents.  In the UK, however, making a commercial surrogacy agreement is a criminal offence.

Under UK law, payments to the surrogate are limited to ‘reasonable’ expenses (which includes living expenses, medical bills and compensation for time off work); expenses beyond that need to be authorised by court.  This is in contrast to some other countries which do not restrict payment of expenses to those that are ‘reasonable’.

For those considering a surrogacy arrangement we strongly advise bearing these key points in mind:

  • Intended parents and surrogates considering entering a surrogacy agreement abroad must get legal advice in that state/country and in the UK.
  • Before the child is born, everyone involved in the surrogacy arrangement should make or update their wills in case one of them dies during the pregnancy or before a parental order is made.  This will help to ensure that:
    • those who are intended to inherit have the necessary rights;
    • that the intended parents are recognised as parents if the surrogate mother dies and also protects the surrogate mother and her family.
  • Intended parents may also want to consider whether to take out life insurance for the surrogate mother’s family in the event that the pregnancy causes her death.
  • Intended parents must apply for a parental order within six months from the date of birth of the child.
  • A parental order can only be granted to a commissioning couple if one or both of them are domiciled in the UK, the Channel Islands or the Isle of Man.
  • The surrogate mother is the child’s legal mother until a parental order is made or the child is adopted.  Until that time the intended mother does not have parental responsibility so cannot give consent to important matters such as medical treatment, education or healthcare.  The status of the father depends on the surrogate’s relationship status.
  • The surrogate must have freely and unconditionally consented to the making of a parental order.
  • Intended parents can benefit from maternity/paternity leave once a parental order is in place. It would be a good idea for the intended parents to discuss the situation with their employers to try to negotiate an arrangement that will allow them to care for their newborn baby without jeopardising their jobs.

The differences in international laws serve to make this area a legal minefield.  If you are considering surrogacy it is imperative that you take specialist legal advice before doing so. Here at Rayden Solicitors, we can help. If surrogacy is something of interest to you, please contact us.

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