Although surrogacy has provided a great opportunity for many same sex couples to have
children, is it something you should consider and is it right for you?
Surrogacy in simple terms is an arrangement in which a couple or a single person arrange for a woman to carry and deliver a child for them. Traditional and gestational surrogacy are the two types of surrogacy.
Traditional surrogacy is when the surrogates egg is used making her the genetic mother, whereas gestational surrogacy is when the intended (also referred to as the social) parent or parents may provide sperm, eggs or sometimes an embryo or they may use donors to provide these, in these cases the surrogate is not related to the child in any way.
Should you choose to have surrogacy in a country other than UK there is an international surrogacy agreement to cover this. Although foreign surrogacy may seem the easier option be aware that it can be more complicated. Seeking prior advice is crucial both in the UK and the country of your choice, certain legal complications can arise over immigration rights, nationality status and payments involved. The surrogacy agreement has to comply with the legal requirements of both the UK and the country of surrogacy which may create other problems.
Although surrogacy is legal in the UK, a surrogacy commercially arranged by advertising or similar methods is not. Surrogates cannot be paid for anything other than reasonable expenses such as loss of earnings, travel, maternity clothing, medications or vitamins, plus any extra expenses incurred for twins or more. Other expenses to consider will be surrogacy fees to the clinic, these vary from clinic to clinic and depend on what is involved in the arrangement - insemination or IVF and how many attempts you have.
It is important to remember that surrogacy arrangements are unenforceable by law and before making any decisions you should seek legal advice from firms who specialise in family law and particularly surrogacy such as Eskinazi & Co.
The birth mother of a child born through surrogacy is always considered, under The Human Fertilisation & Embryology Act 2008, the legal parent until this is changed by the court. This applies even if the surrogate mother is genetically unrelated to the child. She will be named as the child's mother on the birth certificate, and if she is married or in a civil partnership her partner will be considered the other legal parent even if there is a biological one, but the biological father will be considered the legal father in cases where the surrogate is not married.
To become a legal parent you must apply for a Parental Order following the child's birth. There are strict criteria that need to be met before a Parental Order is applied for and once again you need to seek specialist legal advice before embarking on a surrogacy arrangement to make sure you are entitled to apply for a Parental Order. Parental Orders are designed especially for surrogacy, providing an alternative to adoption, they can only be made by the court and with the permission of the surrogate mother and her partner. A Parental Order confirms full parental rights upon the intended parent or parents and at the same time extinguishes those of the surrogate and her husband or civil partner. Once an order has been granted a new birth certificate is issued with the intended parents names.
Although the process of someone else carrying your baby may seem quite overwhelming it is also an exciting time. Being in great shape mentally and physically as well as being armed with the necessary legal information should make for a smooth passage into parenthood.