19.7 Surrogacy

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. This can 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 biological connection to the surrogate mother, making it easier for her to give up the child she is carrying.

Surrogacy is legal in the UK, although surrogacy arrangements are not enforceable in law. The Surrogacy Arrangements Act 1985 makes it clear that it is an offence to advertise that you are seeking a surrogate or are a potential surrogate looking for IP(s).

It is also an offence under that Act to arrange or negotiate a surrogacy arrangement as a commercial enterprise. However, there are several non-profit organisations (also known as `altruistic’) that lawfully assist potential surrogates and IP(s) to navigate their surrogacy.

Other points to note:

• It is a criminal offence to advertise that you are looking for a surrogate or willing to act as a surrogate.

• It is a criminal offence for third parties (i.e. not the surrogate or IP(s)) to advertise that they facilitate surrogacy. However, there are some exemptions for not-for-profit organisations.

• It is a criminal offence for third parties to negotiate the terms of a surrogacy agreement for any payment (e.g. a solicitor cannot represent IP(s) or surrogates in agreeing on the terms).

• The surrogate (and, if she is married or in a civil partnership, her consenting spouse or civil partner) will be the legal parent(s) of the child at birth.

• Following the birth, there is a legal process – the parental order process – to transfer legal parenthood from the surrogate to the IP(s).

• To apply for a parental order and transfer legal parenthood, at least one of the IPs or the IP, in the case of an individual applicant, must be genetically related to the baby.

• It is essential that you can meet the conditions of a Parental Order before you go ahead with a surrogacy arrangement (or if you do not, to take legal advice).

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.

 A fuller explanation of the parental order process is available at: https://www.cafcass.gov.uk/grown-ups/parents-and-carers/surrogacy/

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 paid.
• 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, or the degree of voluntarism involved.

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.