Surrogacy in the UK: the law

mittens on the lineIt is, and always has been, legal to enter into a surrogacy arrangement in the UK.  However, there are various rules and restrictions.

Surrogacy agreements are not binding

Surrogacy contracts are unenforceable in the UK, which means that everyone relies on each other to honour the agreement, both in respect of handing over the child and expenses and other issues.  It is also against the law for a third party (including a solicitor) to negotiate a surrogacy contract for payment.  

Many intended parents worry about what would happen if their surrogate wanted to keep the baby; equally, many surrogates worry about what would happen if the intended parents did not assume responsibility after the birth.  In fact, these problems happen rarely, with over 1,000 successful UK surrogacy cases.  However, it is always important to talk things through carefully at the outset and to set strong foundations.  Even though an agreement is not legally binding, we would normally suggest that you put things in writing, to help create clarity and good communication.

Ultimately, if there is a dispute about who should care for the child after the birth (and who should have contact), an application can be made to the family court for a child arrangements order.  There are only a handful of reported UK cases of this kind: in some, residence was transferred to the intended parents; in others, the surrogate has been allowed to keep the baby.  Each case is dealt with individually, the court weighing up what is in the child's best interests.  Find out more about surrogacy disputes.

Payments for UK surrogacy

It is a common misconception that it is illegal for parents to pay a UK surrogate more than expenses. In fact, there is no such offence in UK law.  The issue of payments is simply a consideration for the family court, which must authorise payments of more than reasonable expenses before it can make a parental order. 

There is no definition of reasonable expenses (nor a fixed amount as to what is allowed), so the court must decide what is reasonable in each case and in practice often takes quite a relaxed approach.  There is also now a history of the High Court retrospectively authorising payments of more than expenses in international commercial surrogacy cases.  The court always wants to know that things have been handled responsibly, and there has been no exploitation or attempt to circumvent child protection law. However, there has never been a case where the court has refused to make a parental order because too much was paid.

Surrogacy agencies

sunflowersIt is a criminal offence for third parties to receive payment for arranging surrogacy, although there is an exemption for certain non profit-making organisations.  There are three main non-profit surrogacy agencies in the UK - Brilliant Beginnings, COTS and Surrogacy UK - which operate within the permitted framework. 

It is a criminal offence (carrying a penalty of imprisonment) for commercial organisations to match or broker surrogacy arrangements in the UK, even if they are based outside the UK. Although there has not to date been a prosecution, in 2013 the High Court referred the British Surrogacy Centre to the authorities for investigation (J v G (2013)).

Advertising

It is a criminal offence to advertise that you are:

  • Looking for a surrogate mother
  • Willing to act as a surrogate mother
  • A third party willing to facilitate the making of a surrogacy arrangement (although this last offence does not apply to non profit-making organisations).

The law applies to adverts online worldwide as well as in print, if they are placed by someone in the UK and can be viewed in the UK. They also apply to the publishers of adverts in the UK.

Treatment at UK fertility clinics

The Human Fertilisation and Embryology Authority's Code of Practice sets out the obligations of UK fertility clinics dealing with surrogacy treatment.

Legal parenthood
Special rules on legal parenthood apply when treatment takes place at a licensed fertility clinic in the UK.  In 2013, we advised the HFEA and helped them to update their guidance, which makes clear that:

  • The surrogate is the legal mother.
  • If she is married, she and her husband (or wife/civil partner) will be the legal parents. In rare cases where if can be shown that the surrogate's spouse/civil partner does not consent the surrogate needs to complete Form LC to explain the circumstances. However, Form LC cannot be used routinely as a way of excluding the spouse from being a legal parent. It only applies if he/she genuinely does not consent (e.g. if the surrogate and her spouse are separated).
  • If the surrogate is not married (or her spouse does not consent) there is a choice as to who is the second parent.  The biological father is the legal father if no HFEA parenthood forms are signed. Alternatively, someone else (usually the intended mother or the non-biological father) can be nominated as the other parent by using HFEA Forms SWP and SPP. The forms must be signed after counselling and before conception, and it is not possible to nominate the surrogate's sibling, parent, child or aunt/uncle as the other parent.

Quarantining
Surrogates are protected by the HFEA in the same way as if they are receiving donated eggs and sperm. This means that the intended parents' embryos (or the intended father's sperm) must be quarantined for the appropriate safety period to make sure they are free of transmissable diseases such as HIV. The quarantine period is up to six months, although many clinics offer shorter quarantining.

Clinic obligations to surrogacy patients
Fertility clinics have to get appropriate consents to treatment from both intended parents, the surrogate and her husband or partner. There are specific HFEA forms for surrogacy. Counselling, including implications counselling about the long term issues associated with having a child through surrogacy, should be offered to everyone involved in a surrogacy arrangement.