As we explored in our previous blog, surrogacy is a popular choice for individuals or couples wanting to create their own family. Once the decision has been made to proceed with surrogacy the intended parents then need to find an appropriate surrogate. This could be a friend, family member or unknown third party.
Finding an appropriate surrogate is the first consideration. It should be someone that the intended parent/s trust or begin to trust over the course of their discussions. Trust is very important because surrogacy is incredibly personal and unfortunately UK laws state that whatever is agreed between the parties whether verbally or written as a Surrogacy Agreement is not legally binding and can be reneged upon by both the intended parent/s and the surrogate. Previous surrogacy cases seem to show it’s unlikely the surrogate will change her mind and seek to keep the baby but the surrogate will be considered as the legal mother because she gave birth to the child. The surrogate may also be worried that the intended parents may change their mind and refuse to accept the baby post birth. An application to the court can still be made in these circumstances and the court would consider the welfare principle and what is in the best interests of the child, but clearly these types of situations should be avoided in the first instance by choosing a surrogate carefully, having meaningful discussions and agreements, and receiving appropriate legal advice at each stage.
If you cannot find a surrogate yourself, then you can seek help from not-for-profit organisations such as COTS or Surrogacy UK. Once a surrogate is chosen, it is wise to embark upon some counselling and some sessions may be mandatory through one of the above organisations and / or your chosen fertility clinic.
As mentioned above, it is wise to seek independent legal advice before embarking upon agreements reached between you or indeed the fertility treatment. However, an agency that charges to arrange surrogacy and / or negotiates a surrogacy agreement for you would be committing an offence under the Surrogacy Arrangements Act 1985. That is not to say that you cannot put your own Surrogacy Agreement in place and have advice upon the potential contents of the same. The purpose would be to set out the intentions of all parties involved; how the proposed surrogacy would work e.g. how involved the intended parent/s would be during the pregnancy, what would happen at the birth, and whether any expenses would be paid; and dealing with applying for the essential Parental Order / Adoption post birth.
Whilst it is illegal for anyone to arrange surrogacy for profit, this does not apply to the intended parents or surrogate. Contrary to popular belief surrogates can be paid in the UK and have been for a number of years. Although paying a surrogate is not new or illegal once the baby is born you will need to apply to the court for a Parental Order and the court must assess and approve any payments made. To date the court has never refused to make a parental order because of any payment made.
It can seem like a complex road with many pitfalls but surrogacy is a very popular choice and if approached with the information you need from a trusted legal team, it can work very well for all parties concerned given that the intended parent/s will obtain their longed for family, and the surrogate is rewarded emotionally by doing something amazing for someone else.