By Sarah Cornes
The number of children being born through surrogacy in the UK has almost tripled in the last three years. Surrogacy involves a woman (the surrogate mother) carrying and giving birth to a child before handing it over to the intended parents.
Historically, surrogacy was rare and a last resort for women who were unable to conceive or carry a child but, since a change to the law, many LGBT and unmarried couples are now opting for surrogacy. As well as the appeal that one or both of the couple can be the child’s biological parent, surrogacy also avoids the arduous assessment process and long waiting lists of adoption.
In the USA, commercial surrogacy is big business with commissioning parents paying up to $100,000 to surrogates. In the UK, however, the law is different and the situation more complicated. Although surrogacy arrangements themselves are permitted, commercial surrogacy is illegal meaning a surrogate can only volunteer and have her ‘reasonable expenses’ paid.
Advertising to offer or utilise surrogacy services is a criminal offence, as is a third party matching couples with surrogates for profit or a solicitor negotiating a surrogacy contract for payment. There are, however, some non-profit-making organisations such as Brilliant Beginnings, COTS and Surrogacy UK, all of which operate within the law.
Surrogacy agreements are not binding in the UK, meaning that all parties must trust one another to honour the arrangement despite there being no contractual obligations.
Still more complicating is the fact that the woman who gives birth to the child (and any husband/civil partner of hers) is automatically the legal parent, even if she has no biological link to the child. The intended parents cannot assume legal parenthood until a ‘Parental Order’ is made by the Court, six months after birth, transferring legal rights from the surrogate to them.
It is important to plan surrogacy arrangements carefully and consider the consequences of conceiving at home or at a licensed clinic inside or outside the UK. Given the unenforceability of surrogacy contracts, there is a lack of certainty for both parties and so it is crucial to communicate clearly from the outset. Even though an agreement is not legally binding, it can be helpful to put things in writing to clarify your intentions.
Ultimately, if there is a dispute about who should care for or spend time with the child after the birth, an application can be made to the family court for a child arrangements order.
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