Jade Quirke from Russell-Cooke’s children team explores the possibilities of surrogacy and the different options.
As a family lawyer specialising in surrogacy and fertility law, I have the privilege of advising prospective parents and surrogates on the legal aspects to their surrogacy plans, no matter how far along they are. When planned well, surrogacy arrangements are life-changing and positive ways to create families, but research and preparation are key.
What is surrogacy?
Surrogacy is where a woman carries or gives birth to a child for another person or couple. There are a number of reasons why someone may require the help of a surrogate. For example, they could be in a same-sex couple, a single parent or could suffer from fertility issues. There are two types of surrogacy:
Traditional (straight) surrogacy – where the surrogate is both the egg donor and carrier. Conception can take place via artificial insemination at home or a fertility clinic.
Gestational (host) surrogacy – where the surrogate carries an embryo for the intended parents. Conception can only take place via artificial insemination at a fertility clinic.
Surrogacy in the UK
It is a misconception that surrogacy is illegal in the UK, but there are various rules and restrictions relating to surrogacy contracts, advertising for surrogates and payment of their expenses. Some consider our UK surrogacy laws outdated because they treat the surrogate as the legal mother and, if she is married or in a civil partnership, her spouse is treated as the second legal parent. This is the legal position, irrespective of biology, where the child was born and what everyone intends.
Thankfully, there is a solution: the parental order. Once made by the court, this order extinguishes the surrogate’s legal rights (and, if relevant, her spouse’s) and makes the intended parent(s) the legal parents. This process has to be done through the court but is a well-trodden legal path.
How do I find a surrogate in the UK?
There are the following three options:
- A friend or family member
2. With the assistance of a non-profit surrogacy agency in the UK – Brilliant Beginnings, COTS, Surrogacy UK and My Surrogacy Journey
3. An independent surrogate who does not work with an agency
If you are lucky enough to find a surrogate, then preparation and research are key. Although legally unenforceable, a surrogacy agreement is always advisable since this will help ensure everyone is aligned on fundamental issues and reduces the risk of things going wrong.
What about surrogacy options overseas?
Due to a combination of our quite restrictive surrogacy laws and the shortage of UK surrogates, many prospective parents prefer an overseas surrogacy arrangement where there are shorter match times and greater legal protection from the outset for both prospective parents and surrogates. Common destinations include the US, Canada, Ukraine and Georgia but we see other destinations pop up each year. If you are contemplating an international surrogacy arrangement, it is important to get advice early since there are often several legal considerations to factor into your planning and whilst they are usually entirely manageable, early planning will be invaluable.
What about surrogacy for non-biological parents?
Surrogacy is absolutely an option for non-biological parents, but there are additional challenges and hurdles including finding a surrogate who is willing to help you and a clinic that is willing to treat you. This is because the usual post-birth solution to remedy the parenthood position once the child is born is not available, as one of the mandatory requirements to qualify for the parental order is that you must be biologically related to the child. Despite these challenges, surrogacy is a practical option for non-biological parents with creative legal solutions which require specialist planning and advice.
Surrogacy is a positive way to create a family but getting good advice and support from experienced professionals is paramount. The children team at Russell-Cooke has a wealth of experience advising families in relation to their family building plans whether through surrogacy, donor conception or adoption and offers practical and legal advice. If you would like to discuss your family building plans, then our team would be delighted to help and guide you to make your plans a success.
Jade Quirke, Associate
Direct: +44 (0)20 8541 2024
Jade.Quirke@russell-cooke.co.uk
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