Over the years I have handled a fair number of surrogacy cases. Clients tell me that they can find the process quite stressful and no wonder- they are embarking on a wonderful, life enhancing event and I feel privileged in assisting them bring new life in to their homes.
In a nutshell, surrogacy is where parties who want to be parents (the prospective parents) need the help of a mother to carry a child. A surrogacy arrangement must be in place before the mother begins to carry the child, and is made with a view to the child being handed over to the prospective parents after the birth.
Many prospective parents and surrogates are matched by an agency. Unlike in many other countries, the setting up of surrogacy arrangements for profit are illegal in the U.K. Accordingly all agencies here in the U.K. are voluntary and are unregulated. It is for that reason that many prospective parents engage with agencies abroad. The costs of surrogacy can vary significantly depending on which country you choose. If cost is going to be a factor, countries such as India tend to be cheaper and the USA is at the higher end (mainly due to the cost of healthcare in the US) Irrespective of cost, the one thing you must ensure is that the agency is regulated and you must also give thought to the legal requirements of bringing the child back to the U.K. after birth.
Who can be a prospective parent?
You must be husband and wife, civil partners or two people who are living in what is called an “enduring family relationship” and over 18 years old.
How do I plan for surrogacy?
Specialist legal representation is critical. When the child is born, the mother will immediately have parental rights and responsibilities for her child. If the surrogate mother is married, then her husband will acquire those rights and responsibilities as well.
If the child is handed over to the prospective parents, they still need to legally acquire the rights that they will need to become the child’s legal parents. If the child is not handed over then the arrangement cannot be enforced so this can be a risky and costly and you need expert guidance along the way.
How do I acquire parental rights and responsibilities?
The prospective parents or applicants need to apply to the appropriate court (in Scotland it is the Court of Session or the Sheriff Court in the place where the child resides) to make an application for an order to provide that the child is treated in law as their child. A point to note is that if you are living in Scotland you need to apply to the Scottish courts even although surrogacy law is the same across the U.K. You also need to be quick. You need to raise within 6 months of birth.
The child must be living with the applicants at both the time of the application and the time of the making of the order, and one of the applicants must be domiciled in the United Kingdom. The court must be satisfied that the surrogate mother and anyone else who is a parent of the child but not one of the applicants freely consents to the making of the order.
No money or other benefit other than for reasonable expenses should be given or received by either of the applicants. Most importantly, the welfare of the child throughout its life must be the paramount consideration of the Court when considering an application. The definition of “ reasonable expenses” will differ depending on where the surrogate lives. To that end, you need to keep all receipts and agreements and it would also be good practice to obtain a letter/affidavit from your chosen agency confirming the “going rate” in their geographical area.
In Scotland, the court will appoint a Curator ad Litem to meet with the applicants and the baby and see them together in their family setting. This report will be an additional expense that will need to be factored in. The court will simply not grant an application without being satisfied that the child is being adequately cared for.
There will be at least two hearings before the judge and don’t be surprised if the judge wants both applicants to attend court personally for the final hearing.
In my experience, similar to adoption hearings, the judge wants to meet with the applicants in order to congratulate them. These hearings tend to be joyful occasions. In fact in my last case the babies came to court as well!