Myth busting surrogacy

With the Law Commission set to look at reform to surrogacy and ahead of the Cambridge University surrogacy conference next week where we’re sure reform to surrogacy will be a hotly debated topic  we explore some of common myths surrounding surrogacy. 

“Surrogacy is for celebs or the super rich.”

Surrogacy is for everyone and most of the couples or individuals we see turning to surrogacy are people who have been on long and often difficult journeys to become parents. The costs of surrogacy do vary significantly depending on whether or not you use a fertility clinic, whether or not you have treatment at home or abroad, whether you use a family member/friend as a surrogate or a third party and whether you instruct lawyers to advise you on the application for a parental order or make the application yourself.

“Paying a surrogate more than their reasonable expenses is illegal in the UK.”

Intended parents or surrogates do not commit an offence if they make/receive payments over and above reasonable expenses. However, the court will have to consider whether to authorise any payments which have been made over and above reasonable expenses in deciding whether to grant a parental order and will be focused on what is in the child’s best interests. It’s really important that intended parents keep a clear record of what is paid, receipts and are able to put in context the sums they have paid and the reasons why they were paid. 

“You don’t need a parental order if you have a foreign birth certificate or foreign court order naming the intended parents as the legal parents.”

Unfortunately the law in England means that without a parental order the surrogate is the legal mother of the child regardless of whether or not there is a foreign birth certificate or foreign court order naming the intended parents the legal parent. Who will be the legal father will depend on the precise circumstances. Obtaining a parental order is an absolute must for any intended parents living in the UK to ensure they are recognised as the legal parents. 

“If the surrogate wants to keep the baby there is nothing the intended parents can do.”

It’s very rare for a surrogacy arrangement to break down and most surrogates do not view the child as their own in any way. Usually where arrangements do break down this is because there has been a misunderstanding about everyone’s expectations are entering into the arrangements or something has happened during the course of the pregnancy which hasn’t previously been discussed and which there is a disagreement over. 

It’s important for anyone considering entering into a surrogacy arrangement to take legal advice in advance so that they understand their legal rights and responsibilities and to give everyone an opportunity to think about the important issues they need to discuss before they proceed. Whilst a surrogacy agreement is not binding it can be a useful way of recording those discussions.   

Although a surrogate’s consent is required for the court to make a parental order a court can make other orders based on what is in the child’s best interests, for example to deal with who the child lives with, what time they spend with everyone involved and who has parental responsibility. Sometimes this might mean that the child lives with the intended parents rather than the surrogate and that they are given parental responsibility for the child.  

“Single people or unmarried couples can’t apply for a parental order”. 

Unmarried couples can apply for a parental order but as the law currently stands co-parents who are not in a relationship/married/civil partnered or single parents cannot apply for a parental order. 

The government is dealing with reforms to enable single parents to apply for parental orders and we represented the Surrogate in a reported case pressing for reform in this area last year.  

Look out for part two to follow soon on how we think the surrogacy law should be reformed and watch out for @rmedrury and @amyestarnes tweets from the conference 


Kris Arpon