Modern Families and Surrogacy Arrangements – Part 1

An Introduction

Surrogacy arrangements date back to biblical times but gained real potential after 1978 when the first baby was conceived via IVF.  This innovation pioneered further medical advances in the field of childbirth. In 1982, the first baby was born via egg donation and the first gestational surrogacy was achieved in 1985, with no genetic link between birth mother and baby.  However, surrogacy gained bad press early on following the controversial surrogacy case of “Baby M” in the US in the mid-1980s.  This was a case where the surrogate had a biological link to the baby and refused to relinquish her parenthood following the birth.  A two-year custody battle ensued with the Intended Parents being granted custody and the Surrogate having visitation rights.  This is, fortunately, a rare occurence.

The growth of surrogacy arrangements has increased dramatically over recent years, with the oldest recorded surrogate being aged 61 who gave birth to her own grandchild.  Surrogacy arrangements have gained further prominence with stars such as Elton John, Robbie Williams, Sarah Jessica Parker and Kim Kardashian extending their family in this way.  There are many reasons why people turn to surrogacy, which include failed IVF procedures, recurring miscarriages, pregnancy health risks, premature menopause or internal abnormalities.  These types of arrangements are also very popular in the LGTBQ+ community as they allow a genetic link to be created to a child where otherwise it might not have been possible.

Essential Terminology

• Intended Parents (“IPs” or “IP”) – the Parent(s)-to-be, where one or both are biologically linked to the baby.
• Surrogate – preferred name of the individual carrying the baby (not mother or parent).
• Gestational/Host Surrogacy – the surrogate has no biological link to the baby and the embryo is created using the IPs’ gametes or with assistance from a donor.
• Straight Surrogacy – the surrogate will use her own egg and the IP’s sperm or donor sperm.
• Commercial Surrogacy – where the surrogate is permitted to be paid compensation to carry a child in addition to expenses. This is legal in the US and a few other countries but not in England.
• SPAR Surrogacy – Special Program of Assisted Reproduction (SPAR) allows a HIV positive man to become a biological father to a child without transmitting the disease.
• Surrogacy Agreement – document signed by the parties involved to record their intentions and commitment to the process.
• Parental Orders – a Court Order that transfers legal parenthood from the surrogate (and potentially her husband/civil partner) to the IP(s).

The full article is published in New Law Journal. To read the full article, please click here.