19.7 Surrogacy

Surrogacy is one of several ways for someone to become a parent who would otherwise be unable. The UK Government supports surrogacy as part of the range of assisted conception options. Surrogacy arrangements are not legally enforceable, and it is not generally recommended that those considering surrogacy do so independently. Surrogacy is legal in the UK providing the surrogate receives no payment beyond her reasonable expenses.

It is illegal to advertise for a surrogate in the UK. Most people have a family member or friend willing to carry the child, others join a surrogacy organisation.

As society has changed, surrogacy has become more common – the number of children born from surrogacy has increased almost fourfold over the last decade.

In the UK, surrogacy is governed by the Surrogacy Arrangements Act 1985 and certain provisions of the Human Fertilisation and Embryology Act 2008.

This is rapidly evolving area of reproductive practice; each case may present unique circumstances and challenges. There should be a low threshold for seeking legal and/or safeguarding advice at an early stage.

Professionals should read this policy in conjunction with National and Local policies and procedures as listed below.

Health professionals must read their own organisation policy in conjunction with ‘Care in Surrogacy’ Guidance for the care of surrogates and intended parents in surrogate births in England and Wales’ DHSC 2021 which includes legal context and guidance, pre-birth, birth planning and post birth, sources of advice and support, and a checklist for surrogacy documentation.

• ESHT Policy Regarding Management of Surrogacy (East Sussex Healthcare NHS)
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• SASH Policy contact your designated safeguarding professional for the Maternity Surrogacy Guideline

• UHSx Policy- contact your designated safeguarding professional for the Management of Surrogacy policy.

Other Guidance:

• https://www.gov.uk/government/publications/having-a-child-through-surrogacy
• Care in surrogacy: guidance for the care of surrogates and intended parents in surrogate births in England and Wales - GOV.UK (www.gov.uk)

• 2023 Draft Bill Surrogacy - Law Commission
• Surrogacy: legal rights of parents and surrogates: Overview - GOV.UK (www.gov.uk)
• Surrogacy Arrangements Act 1985 (legislation.gov.uk)
• The surrogacy pathway: surrogacy and the legal process for intended parents and surrogates in England and Wales - GOV.UK (www.gov.uk)
• Having a child through surrogacy – GOV.UK (www.gov.uk)
• Care in surrogacy: guidance for the care of surrogates and intended parents in surrogate births in England and Wales - GOV.UK (www.gov.uk)
• Human Fertilisation and Embryology Act 2008 (legislation.gov.uk)
• Mental Capacity Act 2005 (legislation.gov.uk)
• Sussex Safeguarding Adults Policy and Procedures | Welcome to Sussex Safeguarding Adults Policy and Procedures

Surrogate is the preferred term for women who are willing to help IP(s) to create families by carrying children for them. A surrogate may or may not have a genetic relationship to the child that she carries for a couple.

Intended parent(s) (IP(s))

These are couples or individuals who cannot have a child themselves and who are considering surrogacy as a way to become a parent. They may be heterosexual or same-sex couples in a marriage, civil partnership or living together/co-habiting, or individuals regardless of their relationship status. To apply for a parental order (which is the way that legal parenthood is transferred from the surrogate to the IPs), at least one of the IPs in a couple must be a genetic parent of the child born to them through surrogacy. An individual may also apply for a parental order to transfer legal parenthood as long as they are genetically related to the child. IP(s) generally prefer to be referred to as the parent(s) of the child.

Straight (also known as full or traditional) surrogacy uses the egg of the surrogate mother and the sperm of the intended father. Thus, the baby is biologically related to the intended father and the surrogate mother. The intended father, in either a heterosexual or male same-sex relationship, or an individual, provides a sperm sample for conception through either self-insemination at home (there may be additional health and legal risks to carrying at self- insemination at home compared to treatment in a clinic) or artificial insemination with the help of a fertility clinic. As the Mother is biologically related to the baby, this may make it difficult for the surrogate mother to give up her biological child, but also for the intended mother to accept a child which her husband has fathered with another woman.

Host (also known as gestational) surrogacy is when the surrogate doesn’t provide her own egg to achieve the pregnancy. In such pregnancies, embryos are created in vitro and transferred into the uterus of the surrogate using:

• eggs of the intended mother fertilised with sperm of the intended father or donor; or
• eggs of a donor fertilised with sperm of the intended father, where the intended mother cannot use her own eggs or the IPs are a same-sex male couple.

A baby conceived by this method has no Genetic connection to the surrogate mother.

What is a surrogacy agreement?

An agreement between IP(s) and a surrogate (and her spouse or partner if she has one) is not a legally binding document but rather a statement of intention about how the arrangement will work and the commitment that each party is making to the other in advance of the surrogacy commencing.

A professional in any agency may become aware of the surrogacy arrangement and have concerns about:

• The suitability of the intended parents to care for the child;
• Conflict between the adults in a surrogacy arrangement, e.g. that the surrogate mother is under pressure to relinquish the child against her will; and/or
• Concerns around the amount of expenses being ‘reasonably incurred’
•  The safety and health of the surrogate and child will always be of paramount importance.

For example, hospital staff and midwives may become aware that a baby about to be born, or just born, is the product of a surrogacy arrangement and have grounds to doubt the intended parent's identity/suitability to care for the baby.

An unborn or new-born child in these circumstances could be at risk of physical and emotional abuse and/or neglect.

In these circumstances, any agency holding such concerns has a responsibility to safeguard and promote the welfare of the unborn or new-born child, and professionals should follow the Making a Referral Procedure to Children’s Social Care.

Children's Social Care responses should be proportionate to what are likely to be very individual circumstances and legal advice will probably be required.

Consideration must also be given as to whether the surrogate is an adult at risk of harm or abuse themselves including the possibility of exploitation and or human trafficking for the purpose of surrogacy. Professionals need to consider whether a referral needs to be made to Adult Social Care for assessment - https://sussexsafeguardingadults.procedures.org.uk

• The Surrogacy Arrangements Act 1985 makes it clear that it is an offence to advertise that someone is looking for a surrogate or an Intended Parent (Ips).
• It is also an offence under the Act to arrange or negotiate a surrogacy agreement as a commercial enterprise. However, there are several non-profit organisations that lawfully assist potential surrogates and Ips to navigate their surrogacy.
• See more - Surrogacy: legal rights of parents and surrogates: Overview - GOV.UK (www.gov.uk)

A child's birth must be registered by someone holding PR eg: the surrogate or her husband within 6 weeks of birth, this should be explained to both the surrogate and the intended parents.

When a child is born through surrogacy, the intended parent(s) (IP(s)) should apply to the family court for a parental order. The parental order transfers legal parenthood from the surrogate (and her spouse or civil partner, if she has one) to the IP(s). It can only be made with the surrogate's consent

The parental order process takes place after birth and involves the family court and a court-appointed social worker. This provides a valuable safeguard for the best interests of the child.

If there is any doubt about the IP(s)' eligibility to apply or any concerns by either the IP(s) or surrogate about the other's commitment in the process, then legal advice should be sought. For the full criteria, please see section 54 of the Human Fertilisation and Embryology Act (2008).

If all the legal criteria are met, the court's paramount consideration in making the parental order is the child's lifelong welfare.

Up until the granting of the Parental Order by the Court, the surrogate can apply for a Residence Order to stop the Parental Order being made or seek the return of child. The intended parents can make a counter application.

For an explanation of the parental order process please visit https://www.cafcass.gov.uk/grown-ups/parents-and-carers/surrogacy/

In the UK, the surrogate is the legal parent of the child unless a parental order is obtained from the court; this applies even if the eggs and sperm used are those of the IP or donated (i.e., if the surrogate is not genetically related to the child). Once a parental order for the baby is granted, the surrogate will have no further rights or obligations to the child.

Since the surrogate remains the legal mother at birth, staff should ensure they are satisfied that they consent to the provisions within the surrogacy agreement and that the postnatal arrangements, including any delegations they have made to the IP(s), are written clearly in the medical notes. While it is often the case for a surrogate child to be transferred to the IP(s) at birth, the written consent of the surrogate should be provided if the child is to be discharged with the IP(s) and independently of the surrogate.

Under no circumstances should the child be discharged with the IP(s) without the surrogate’s consent. However, there is no need to inform a social worker or lead for safeguarding unless staff determine that either party may be experiencing difficulty or there is some other reason that staff consider a social worker should be contacted. 

Care in surrogacy: guidance for the care of surrogates and intended parents in surrogate births in England and Wales - GOV.UK (www.gov.uk)

It is essential that the surrogate has the mental capacity to consent to surrogacy and to make decisions about her care and that of the child post-partum. Should staff have any concerns regarding the mental capacity of the surrogate, then a formal assessment of capacity should be performed (staff are advised to follow the Trust’s consent policy). In the event that the surrogate lacks capacity to provide her consent or to make a particular decision, then treatment should be given having regard to the best interests of the surrogate. However, staff are advised to consult the trust’s lead on mental capacity, taking into account the Mental Capacity Act 2005, prior to administering non-emergency treatment in such circumstances. As part of this process, the adult safeguarding team should be involved and an assessment of need/support undertaken and action taken accordingly. https://sussexsafeguardingadults.procedures.org.uk/

Disputes in surrogacy are rare. Where the parties are being supported by one of the national altruistic surrogacy organisations, the organisation will usually offer assistance and support to help resolve any difficulties. Professionals should attempt to work with the surrogate and the IP(s) at all times. However, in the event of an unresolvable dispute, the surrogate’s wishes must be respected, regardless of what is set out in any surrogacy agreement or consents that may previously have been provided.

Professionals may wish to consider contacting the lead for safeguarding children for further advice and guidance if a dispute continues or a concern arises.

Research suggests that openness, confidence and transparency about a child's origins from an early age (pre-school) is the best way to talk to children about their identity and origins. It is usually better to tell children when they are still young. Many parents like to be open with their child from as early an age as possible.

This prevents any risk of them finding out by mistake, or doubting their genetic connections as they grow older. The Donor Conception Network suggests the goal of early ‘telling’ is that a child should grow up ‘never knowing a time when they didn’t know’.

Support can be found here : Telling older children and adults Donor Conception Network (dcnetwork.org)