Different countries have different surrogacy laws. For example, in England and Wales making a commercial surrogacy arrangement is a criminal offence whereas in some other countries it is legal to do so.
In England and Wales, payments to the surrogate are limited to ‘reasonable’ expenses (which include living expenses, medical bills and compensation for time off work), whereas some other countries do not restrict payment of expenses to those that are ‘reasonable’. Some pointers for those considering surrogacy arrangements include:
- Commissioning parents (the intended parents who have commissioned the surrogacy agreement) and surrogates considering entering a surrogacy agreement abroad should take legal advice in both that state/country and England and Wales about the surrogacy laws and any immigration points. We can help you consider what questions to ask the lawyer abroad.
- Before the child is born, everyone involved in the surrogacy arrangement should make or update their wills in case one of them dies during the pregnancy or before a parental order is made. This will help to ensure that those who are intended to inherit have the necessary rights, that the commissioning parents are recognised as parents if the surrogate mother dies and also protect the surrogate mother and her family. Commissioning parents may also want to consider whether to take out life insurance for the surrogate mother’s family in the event that the pregnancy causes her death.
- Practical considerations for bringing home the child, such as applying for a passport and how long the commissioning parents will need to remain in the country of birth.
- The surrogate mother is the child’s legal mother until a parental order is made or the child is adopted. Until that time, the commissioning mother does not have parental responsibility, so they cannot give consent to important matters such as medical treatment, education or healthcare. The status of the father depends on the surrogate’s relationship status.
- Commissioning parents should apply for a parental order within six months of the child’s birth.
- A parental order can only be granted to a commissioning couple if one or both of them are domiciled in the UK, the Channel Islands or the Isle of Man.
- The surrogate must have freely and unconditionally consented to the making of a parental order.
- Commissioning parents can benefit from parental leave (equivalent to maternity/paternity leave) if they intend to apply for a parental order. At least 15 weeks before the baby’s due date, they should notify their employer of their intention to take leave.
The differences in international laws make this area a legal minefield. If you are considering surrogacy, it is crucial that you take specialist legal advice before doing so.
Need Expert Legal Advice on Surrogacy?
Navigating the complexities of surrogacy laws can be challenging. Our experienced family law team is here to help you every step of the way. Whether you need guidance on surrogacy agreements, parental orders, or any other related legal matters, we’re just a call or email away.
Call us at 0344 967 0793 or email Joanna.Kay@la-law.com to schedule a consultation today.
