12 October 2020
International surrogacy: Your questions answered
Why choose international surrogacy?
While UK surrogacy laws are currently under government review, it remains illegal here to enter into a commercial surrogacy agreement with a surrogate. Surrogacy itself is not illegal in the UK but only reasonable expenses can be paid and no contract between the parties will be recognised in the courts, meaning the arrangement is not enforceable if one party changes their mind.
Women in the UK offer to be surrogates for altruistic reasons, but the wait can be long. Intended parents – single sex and heterosexual couples and single parents - therefore tend to look abroad to places such as California and Florida where commercial surrogacy is legal and well-regulated, protecting all parties.
While surrogacy is also legal in countries such as Ukraine and some African counties, concerns over the exploitation of surrogates mean we do not recommend these countries.
What are the different types of surrogacy?
Straight, or traditional surrogacy is where the surrogate is both the genetic mother as well as the woman who carries the child. The pregnancy is achieved either through artificial or natural insemination or IVF to create the embryo using the surrogate’s eggs and the sperm of one of the intended parents which is then implanted into the surrogate.
Gestational surrogacy is by far the most common arrangement and involves using either the intended mother’s egg or a donated egg, but not an egg from the surrogate. The sperm is either from the intended father or from a donor but there must be a genetic link to one of the intended parents so you cannot use both a donor egg and donor sperm. Although the surrogate will not be biologically related to the child, UK law determines that she retains legal responsibility for that child until it is transferred to the intended parent(s) via a parental order.
How do I find an international surrogate?
Most people use a reputable clinic overseas, usually in the US, that connects intended parents with suitable surrogates. Both parties ‘chose’ the other and some develop relationships that continue after the birth, while for others that relationship ends at the birth.
The clinic will work alongside your foreign fertility lawyer to ensure all the necessary paperwork is in place and most offer emotional and practical support to both parties as well as handling payments and fees. Your UK lawyer will also work with his/her foreign counterpart to protect your interests.
The benefit for UK domiciled intended parents entering into a commercial agreement with a surrogate in the US is that all parties should have the benefit of US independent legal advice and US parental orders can be granted within a short space of time. However, as overseas parental orders are not recognised by the UK courts the intended parents will need to bring an application for a UK parental order so that they can extinguish the parental rights of the surrogate and secure their own legal parenthood in respect of the child.
The surrogate must always consent to the making of a parental order. There have been instances in countries where regulation is lax where a surrogate cannot be contacted to give that consent.
Before they return home to the UK with their child, the intended parents must work with the relevant immigration authorities so that the child can travel home with them.
In any case, intended parents who bring home a child born by surrogate from overseas must apply for a parental order within 6 months of the birth. Although it has been known for the courts to exercise discretion to allow later applications this should not be relied upon.
How do I begin the process of surrogacy?
As is clear, surrogacy law is complicated and intended parents should always instruct a lawyer before entering into any agreement overseas. The lawyer will offer advice on the law and be able to assist you once the surrogacy arrangement is in place.
Once the child is born and back in the UK with the intended parents, it is important to ensure that there is no delay in applying for the parental order. This application cannot be made in the first six weeks (as the surrogate’s consent will not be deemed to be valid) and at least one of the intended parents must be domiciled in the UK.
Until the parental order is obtained the surrogate is still, under UK law, deemed to be the legal parent of the child, so decisions regarding the child, such as medical treatment, under law will require the surrogate’s consent until her rights are extinguished under a parental order.
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This publication is not intended to provide a comprehensive statement of the law and does not constitute legal advice and should not be considered as such. It is intended to highlight some issues current at the date of its preparation. Specific advice should always be taken in order to take account of individual circumstances and no person reading this article is regarded as a client of this firm in respect of any of its contents.
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