Modern Families and Surrogacy Arrangements – Part 2

Pathway to Surrogacy

Surrogacy in England is legal, but the surrogacy agreements themselves are not legally binding or enforceable.  Under the Surrogacy Act 1985, it is a criminal offence to advertise for a surrogate, negotiate a commercial arrangement with a surrogate or facilitate surrogacy for someone else.  It is also a criminal offence for a surrogate to advertise surrogacy services.  In order to minimise risk, it is therefore recommended to proceed via an experienced surrogacy organisation and to enter into a surrogacy agreement.  The three largest surrogacy organisations are: Surrogacy UK, Brilliant Beginnings and COTS.  These organisations help Intended Parents (“IPs”) to find a surrogate and conduct background and medical checks to ensure the right candidates are found and matched.  It is important for the IP(s) to develop a relationship of trust with the surrogate and to get to know each other properly before any surrogacy agreement is reached.

Surrogacy Agreements are likely to include:

• Conception Arrangements – how the embryo is to be created and inseminated. If the parties require IVF treatment, further decisions will need to be made such as choice of clinic and how many embryos should be transferred at a time.
• Pregnancy Arrangements – including medical decision-making (if something goes wrong), healthcare (what medications and vitamins should be used), who will attend appointments and how much information the IP(s) will be given during this waiting period.
• Birth arrangements – outlining the type of birth, medications and who will be present.
• Post-birth arrangements – how the baby will leave hospital. It is important to agree discharge arrangements with healthcare staff so the IP(s) are properly recognised.
• Expenses – it is good practice for the surrogate to provide an estimate of reasonable costs up front and for it to be recorded in the agreement. The surrogate is also permitted to be reimbursed for:

i)       loss of earnings

ii)      her partner/spouse’s loss of earnings (if applicable)

iii)     treatment costs, such as IVF

iv)     additional childcare to cover appointments

v)      travel costs

vi)     additional food and supplements

vii)    additional therapies that assist the pregnancy

viii)   modest recovery break with her family

These payments will be scrutinised by the Family Court when it comes to making the Parental Order and the surrogate must keep a record.

• Wills – Most IP(s) will be recommended to make a Will to ensure guardianship is considered in the event of death of one or more of the IP(s). The IP(s) will want to nominate carers to ensure the surrogate and the child are protected.

Criteria

The party(s) must ensure they can meet the requirements of a parental order before embarking on the surrogacy journey to prevent complications at the other end.  The criteria to apply is as follows:

• HFEA s.54.S54 (A(1) – the child must be carried by a surrogate and be genetically linked to at least one of the applicants
• HFEA s.54 (2) – the IP(s) must be married/in a civil partnership or are in an enduring family relationship
• HFEA s.54 (3) – the IP(s) must apply within 6 months of the birth
• HFEA s.54 (4) – the child’s home must be with one of the IP(s) at the time of the application and at least one of the IP(s) domiciled in the UK
• HFEA s.54 (5) – the IP(s) must be over 18 when the Order is made
• HFEA s.54 (6) – the surrogate and their partner/spouse must give consent unconditionally to a parental order being made
• HFEA s.54 (7) – the surrogate cannot give consent before 6 weeks from the birth has passed (this will be done on forms C52 and A101A in practice)
• HFEA s.54 (8) – the Court must be satisfied that the expenses paid and incurred by the surrogate must be reasonable and not commercial

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