Valemus family law partner Joanna Abrahams looks closely at the options (or lack thereof) available to those in the UK who turn to surrogacy as a route to having a baby.
The ongoing war in Ukraine has trapped surrogates and babies in a conflict zone. It has also shone a very bright light on the limited options available to those in the UK who turn to surrogacy as a route to having a baby. Whilst, at first blush, surrogacy seems to be an option for childless couples, the reality is that here in the UK this path is strewn with obstacles – obstacles which are not immediately apparent.
The cost of a surrogacy arrangement here is limited to expenses. This means that it is not open to potential host mothers to, in effect, make a living from this. This is in sharp contrast to the USA, where couples (called commissioning parents) are looking at sometimes costs of $200,000. This obviously brings no certainty of success but - unlike here – it provides the comfort of a legally binding agreement.
What Is Surrogacy?
Surrogacy begins the moment the embryo of an egg is in the process of fertilisation or, indeed, when a sperm and an egg are placed in the host’s womb. Surrogacy can be partial (whereby the host is the genetic mother and the egg will be fertilised by the father’s semen) or total (whereby the host is simply acting as a host for the embryo and egg fertilised by the couple).
Any arrangement entered into is unenforceable in England and Wales. The law surrounding this is, if you wish to Google it, Section 1A of the Surrogacy Arrangements Act; which states that “no surrogacy arrangement is enforceable by or against any of the persons making it”.
Commercial Basis Barred
Accordingly, parties are not allowed to enter into a surrogacy arrangement on a commercial basis but allowances are made for acceptable expenses. It is illegal to take part in a surrogacy arrangement - or any negotiations with the view to the making of a surrogacy arrangement - if it is done on a commercial basis. This means that, quite bizarrely, if a couple seeks specific advice as to a specific agreement, then your solicitor could potentially be committing a criminal offence. This is why advice has to be generic.
As it stands, the host is known as the surrogate mother and she will, therefore, have legal parentage of the child until a parental order is made. This is the case whether the surrogacy is partial or total. If the host mother is unmarried, the father will be the male of the commissioning couple. His name goes on the birth certificate.
Final Thoughts
The current surrogacy laws in the UK have led to more and more people turning abroad. However, surely it is time that 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.
