Valemus partner in family law Joanna Abrahams takes a close look at the options (or lack thereof) available to people in the UK who are looking to surrogacy as a means of having a baby.
The ongoing war in Ukraine has trapped surrogates and babies in a conflict zone. It also shed light on the limited options available to people in the UK who are looking to surrogacy as a means of having a baby. While at first glance surrogacy seems like an option for childless couples, the reality is that here in the UK that path is strewn with obstacles – obstacles that are not immediately apparent.
The cost of a surrogacy agreement here is limited to expenses. This means that it is not possible for potential foster mothers to make a living from it. This contrasts sharply with the UNITED STATES, where couples (known as sponsoring parents) sometimes consider costs of $200,000. This obviously brings no certainty of success but – unlike here – it offers the comfort of a legally binding agreement.
What is surrogacy?
surrogate mother begins when the embryo of an egg is being fertilized or, in fact, when a sperm and an egg are placed in the host’s uterus. Surrogacy can be partial (where the host is the genetic mother and the egg will be fertilized by the father’s sperm) or total (where the host simply acts as a host for the embryo and egg fertilized by the couple).
Any agreement entered into is unenforceable in England and Wales. The law around it is, if you google it, Section 1A of the Surrogacy Arrangements Act; which states that “no surrogacy agreement is enforceable by or against any of the persons who entered into it”.
Commercial basis Excluded
Accordingly, the parties are not permitted to enter into a surrogacy agreement on a commercial basis but allowances are made for acceptable expenses. It is illegal to participate in a surrogacy agreement – or any negotiation to enter into a surrogacy agreement – if done on a commercial basis. This means that, oddly enough, if a couple asks for specific advice as to a specific agreement, your lawyer could potentially commit a criminal offence. This is why advice should be generic.
As it stands, the host is known as the surrogate mother and she will therefore have legal parentage to the child until a parenting order is issued. This is the case whether the surrogacy is partial or total. If the host mother is not married, the father will be the man of the sponsoring couple. His name appears on the birth certificate.
Current surrogacy laws in the UK have led more and more people to look overseas. However, surely it is time we looked at the law and made it easier for couples who have more than likely had a very difficult journey to reach the point where surrogacy seems to be the most viable option for them.