FAQs:
Starting the surrogacy process
If you are hoping to have a baby through a surrogate, Rashmita Vadher, Family Law and surrogacy specialist at Ince answers some of the frequently asked questions she hears from couples who are wishing to start their surrogacy journey.
How much do I have to pay a surrogate?
It is against the law in England and Wales to pay a surrogate for carrying a baby. However, payment of reasonable expenses, such as travel, medical treatments or supplies, loss of earnings for the surrogate, if the surrogate has a spouse or partner, their loss of earnings; maternity clothing costs and other incidental expenses are permitted. Couples may fall into the trap of wanting to pay for such an invaluable sacrifice by the surrogate, but ensure you take note of any expenses that are paid, and why, to avoid any legal pitfalls. The expenses considered as reasonable are not set in stone but there are guidelines.
How do we become the baby’s legal parents?
Once the baby is born, the surrogate mother automatically acquires parental responsibility; regardless of whether she is carrying her own or one of the intended parent’s eggs.
If the surrogate mother is married, her husband is also considered to be the baby’s father. In the past, there have been instances where the surrogate’s husband has not given their consent, so it is important to obtain this at the outset of any arrangement. If the baby’s biological father is not married to the surrogate, he can only acquire parental responsibility once an Order is made by the court. However, if the surrogate mother is unmarried, the biological father will be treated as the legal father. Nevertheless, once again this would require an Order to acquire parental responsibility. Likewise, non-biological, intended parents also do not acquire legal parenthood or parental responsibility until the relevant order is made.
What are the biggest surrogacy pitfalls for intended parents?
Advertising for a surrogate Do not advertise that you are looking for a surrogate – it is a criminal offence to do so.
Paying your surrogate Do not enter a commercial arrangement with, or pay your surrogate, other than reasonable medical, travel and other related expenses. Not getting a Parental Order The surrogate will be the legal guardian of the baby until a Parental Order is made in the intended parent’s name.
Not seeking specialist advice Although you can enter into a surrogacy arrangement independently without any advice, it is strongly recommended to seek support from a surrogacy not for profit organisation and solicitor to ensure a smooth process for you, your surrogate and the baby. Not doing the maths Intended parents should be aware of the financial implications of surrogacy and the expenses that they will be responsible for.
What happens if the surrogate wants to keep the baby?
Although it is rare, a surrogate may change her mind and wish to keep the baby. In this case, there are a number of things to consider. Is the surrogate married or in a civil partnership? If she is married, the husband is automatically considered as the baby’s legal father.
Is the surrogate single? If the biological father is named on the birth certificate, he will acquire parental responsibility.
If the surrogate has a long-term partner, they do not become the baby’s legal parent.
In the event that there is dispute and the surrogate wishes to keep the baby, the intended parents may apply to the court for a Child Arrangements order. When considering such an application, the court will consider the welfare checklist contained in the Children Act 1989. In particular, the most relevant considerations would include: the child’s physical, emotional and education needs, the ability of the surrogate and intended parents to meet the child’s needs, and any relevant characteristics of the child, such as age, background and sex. Nevertheless, time is of the essence as if the intended parents made an application for a parental order six weeks after the birth of the baby without the surrogate’s consent, the application will fail.
How do I become a surrogate?
There are some things you need to consider before you embark on this selfless journey: Contacting a registered, specialist surrogacy agency There are a few registered agencies and it is safer to register with them, than to be a surrogate prvately.
Staying fit and healthy Before becoming a surrogate, there are health requirements, from having a BMI of between 19 and 30, to being a non-smoker, and more recently, being fully vaccinated with common immunisations, including Covid-19.
Preparing to undergo fertility treatment such as IVF and IUI
Getting to know the intended parents Once you have beenmatched with intended parents, arrange to meet with them regularly throughout the process, and ask them to sign a surrogacy agreement.
Our surrogacy services include: • Initial surrogacy legal advice for both intended parents and surrogates. • Making parental order or other relevant court applications as required. • Immigration advice including pre and post arrival information, passports and other documentation. • Private client services, ranging from making plans for your child in your will, mitigating tax and protecting and passing on your assets in trusts. • Litigation support for any disputes or issues between any parties involved in the surrogacy process. • Financial advice through our Financial Conduct Association (FCA) regulated financial advisors.
If you’re considering using a surrogate and in need legal advice: Call us on +44 (0) 20 7481 0010 or email - hello@incegd.com Find out more at incegd.com/surrogacy