Alternative families are becoming increasingly un-alternative.
There is however still much interest in the press in respect of celebrities having babies using surrogates.
Paris Hilton recently welcomed a baby using a surrogate. There has been talk of the ‘sky high costs, and iron-clad NDA’s’ for surrogates of celebrities, but are these observations true for a non-celebrity surrogacy?
Celebrity surrogacies we see in the headlines are often taking place in America, in states where surrogacy is regulated and commercialised. In England and Wales there is no commercial surrogacy.
In America it is permitted – and often required – for a surrogate to be paid a fee for carrying a baby, in addition to her expenses. There are also likely to be agency fees, for matching the intended family with a suitable surrogate in the first place. In England and Wales only ‘reasonable expenses’ are payable to a surrogate. What is ‘reasonable’ can vary from case to case, but it is typical to see a surrogacy costing more abroad. It is not permitted to make a profit from a surrogacy in England and Wales so there can be no fee for any other advice you may take. The only other cost could be the legal fees for obtaining a Parental Order once the child is born.
Despite the increased fees, America remains a popular choice for commissioning couples, due to the fact that the process is regulated. In America the surrogate and intended parent(s) can enter into a binding surrogacy agreement, to ensure that the child is handed over to the intended parent(s) on birth. It is also typical for the intended parents to become the legal parents of the child born through surrogacy upon birth, under US law. In England and Wales, it is not possible to have a legally binding agreement and the surrogate will remain a legal parent, under English Law, until the grant of a Parental Order or alternative Order terminating the rights of the surrogate.
The fee paid to a surrogate is not determined by the celebrity status of the commissioning parent(s). The fees are set by the agencies in the US. Whilst wealthy intended parents may choose to pay for their surrogate to have a personal trainers, nutritionists and even specialist chefs, it is not a legal requirement to meet the costs of such expenses. These expenses are not usually required under the terms of a typical surrogacy agreement.
Non-Disclosure Agreements (NDAs)
Celebrity commissioning couples will usually want to ensure that their privacy is protected, this might be done in part through the terms of the surrogacy agreement. However, to ensure a high level of privacy NDAs are frequently used in these circumstances. The terms can be tailored to a specific circumstance and they can restrict surrogates from disclosing the identity of the commissioning couple or even prevent them posting images of themselves without the commissioning couple’s approval.
These agreements come at a cost, adding yet further sums to the overall fees paid in relation to a celebrity surrogacy.
In America a non-celebrity would typically need to cover agency fees, surrogate compensation and expenses, fertility clinic fees and legal fees for preparing a binding agreement that addresses how the pregnancy, birth and handover to the intended parent(s) would be governed. If an English couple is using a surrogate in America, the expenses paid that are beyond “reasonable expenses” need to be retrospectively authorised by the Court in England before the grant of a Parental Order.
In England and Wales, the costs of surrogacy are limited to the surrogate’s “reasonable expenses” and possible legal fees in relation to obtaining a parental order once the child was born. What “reasonable expenses” amounts to will vary depending on the circumstances of a specific case. For example, if a surrogate is used who has to take time off work where she would normally earn £120,000 a year her expenses could well be higher than if the surrogate was unemployed.
Commissioning couples frequently do enter into surrogacy agreements in England and Wales, although it will not legally bind the parties, it can be considered helpful to clarify everyone’s expectations and frequently UK surrogacy charities can assist in what such an agreement should cover.
Our specialist family lawyers have recognised expertise in surrogacy law and will be able to guide and advise you on your domestic or international surrogacy arrangement. Please do not hesitate to contact us to discuss your situation further.