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Surrogacy in the UK

Surrogacy laws differ dramatically around the world.  We have all seen stories in newspapers and magazines about celebrities using a surrogate and travelling to various countries for this.  In the USA for example, surrogacy is based on a legal commercial agreement and the rules governing that agreement are quite relaxed.  When it comes to the UK, the laws governing surrogacy are much stricter.

That said, there have been recent and important domestic developments that saw a Claimant in the UK allowed to include the costs of surrogacy (restorative compensation) in her claim for medical negligence.  For more on this landmark decision please see my colleague’s blog here.

This is undoubtedly a step forward for Claimants, but understanding what is and what is not permitted in the UK can be confusing at first glance.  My intention is to clarify some of that confusion here.

What is surrogacy and what is the process?

In basic terms, surrogacy refers to the process whereby a woman carries and gives birth to a baby for another person or couple.  There are two types of surrogacy available; either full or partial surrogacy

Full surrogacy is where the egg of the intended mother is used and therefore there is no genetic connection between the baby and the surrogate.  Partial surrogacy is where the surrogate’s egg is used and is fertilised with the sperm of the intended father.  Many people prefer full surrogacy as there is a genetic link between the baby and both the mother and the father.

In the UK, surrogacy treatment must be provided through a Human Fertilisation and Embryology Authority (HFEA) licensed clinic.  A clinic can be found by using the “find a clinic” function on the HFEA website.

Fertility clinics are not able to help to find a surrogate for the intended parents.  However, some organisations can provide help with this such as Surrogacy UK or Brilliant Beginnings.

What are the rules in the UK?

Surrogacy is legal in the UK, but unlike our American counterparts, a commercial surrogacy agreement here is not legally enforceable.  Therefore, the parties’ agreement must be based wholly on trust and many intended parents like to choose a family member or close friend as their surrogate for this reason.  Despite this, many find it reassuring to set out their respective wishes and expectations in writing.

Whilst under UK law commercial surrogacy is prohibited, you are able to reimburse a surrogate mother for any reasonable expenses that they might incur during the course of the pregnancy.  This might be for maternity clothes, travel expenses or even loss of earnings for time taken off work.  The reimbursement of these incurred costs will differ from case to case.

Finally, but arguably most importantly, once the baby has been born, the legal mother is always the surrogate.  The intended mother must therefore apply to the Court to become the legal mother of the child.  This is irrespective of whether the baby is genetically related to the intended mother (through full surrogacy) or to the surrogate (through partial surrogacy).

In order to become the legal parents, the intended parents must apply for a parental order or adopt the child.

Obtaining a Parental Order

You can apply to the Family Court for a Parental Order either with a partner or as a single parent.

To apply for such an Order with a partner the following criteria applies:

  1. One of the intended parents must be genetically related to the child;
  2. You must be either married, civil partners or living as partners;
  3. The child must be living with you;
  4. You must reside permanently in the UK, Channel Islands or Isle of Man;
  5. You must apply for a parental order within 6 months’ of the birth; and
  6. You must provide the child’s birth certificate

To apply for a parental order as a single parent the following criteria applies:

  1. You must be genetically related to the child;
  2. You must have the child living with you;
  3. You must reside permanently in the UK, Channel Islands or Isle of Man;
  4. You must apply for a parental order within 6 months of the birth; and
  5. You must provide the child’s birth certificate

It is also important to note that when considering such an application the Court will approve any payments made to the surrogate mother to ensure that it does not go further than reasonable expenses and fall foul of the ban on commercial surrogacy.

Adoption

The alternative to the above is adoption.  This is largely used where neither of the intended parents are genetically related to the child.  If this is the case, adoption is the only way to become the child’s legal parent.

The adoption process is more complex than obtaining a Parental Order and is conducted through an adoption agency.  The adoption agency conducts an adoption assessment and provides an assessment report to an independent adoption panel for the approval of the adoption.

More information on how to adopt the child can be found on the government website here.

Conclusion

The success of surrogacy treatment cannot be guaranteed and the process can be difficult with various fertility procedures having to be carried out.  Guidance for surrogacy treatment can be obtained from an HFEA licensed clinic or organisation (such as Surrogacy UK or Brilliant Beginnings) who can offer help to make things clearer.

At Bolt Burdon Kemp, we regularly act for clients who have suffered injuries that impact upon their fertility.  Some injuries or illnesses can mean that a client needs assistance in conceiving (such as IVF treatment) or that they need a surrogate to carry their child.  In either event, we can help recover the associated costs of these processes and provide the necessary knowledge and support required.

Whilst our clients might not be able to experience their own pregnancy by reason of negligence, recent developments in the law around surrogacy signal a positive step forward in helping Claimants get the financial compensation that they deserve to start, or continue to grow, the family that they desire.

[1] https://www.imperial.ac.uk/news/189047/15-minute-scan-could-help-diagnose-brain/

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