The number of children being born through a surrogacy arrangement has soared in recent years, with celebrity couples such as Elton John and David Furnish, and Kim Kardashian and Kanye West hitting the headlines.
Surrogacy arrangements, whether they are made formally or informally and where everyone involved lives in the UK, have been regulated by the current law for over 30 years. There are strict rules on what is permitted within an arrangement and legal advice should be taken so you understand your rights during the process.
It becomes more complex if you decide to take a global approach and find a surrogate overseas. You will still need to ensure that you are recognised as the legal parent of the child when you return to the UK.
Melissa Cunningham, family lawyer with IMD Solicitors explains how different types of surrogacy arrangements work and [he/she] offers some practical advice on what everyone involved in the process should consider.
‘Whether a friend has volunteered to help or you are thinking of using a professional service, you should seek advice on the legal implications before you decide if it could be right for you and certainly before you agree anything,’ says Melissa.
‘It is highly advisable to have a plan for transferring rights from the birth mother to the new parents through a parental responsibility order or adoption. The important thing is to stay on the right side of the law. In the UK it is illegal to pay a surrogate anything other than reasonable expenses.’
Types of surrogacy
Surrogacy is when a woman agrees to give birth to a child for another person, or couple, who will then raise the child as their own. It is very important from the beginning that those involved understand as much as possible about what lies ahead.
There are three recognised types of surrogacy arrangement in the UK:
Total surrogacy or gestational surrogacy – this is where a woman agrees to allow your egg, or that of your partner, to be implanted into her womb following fertilisation by you or your partner and then to carry your genetic child. Even though you and your partner will be the genetic parents of the child, the surrogate will still be recognised as the legal mother when the baby is born. So, you will need a legal order to transfer parental responsibility to you six weeks after the baby is born.
Partial surrogacy – this is where a woman agrees to be artificially inseminated with the sperm of you or your partner, to fertilize her own egg. The surrogate mother and the sperm donor will be the genetic parents of the child and will usually be recognised as the legal parents at birth. This is unless the surrogate mother is married and her husband did not consent to the insemination. In this case the baby will be the legal child of the surrogate and her husband until the court orders that you and your partner can be recognised as the legal parents.
Surrogate mother or carrying mother – this is where a woman agrees, before she becomes pregnant, to carry a child for you. The egg and sperm needed to create the baby will be donated, perhaps by the surrogate themselves and their partner. The surrogate and whoever impregnated her will be the genetic and legal parents of the child and will have full legal rights in respect of them until those rights are formally transferred to you by a court.
Agreements concerning surrogacy arrangements must be handled with care. They require careful negotiation to ensure that everyone understands what is involved. The surrogate mother and her spouse or partner, if appropriate, need to be fully committed to transferring parental responsibility to you once the baby has been born.
Many parents find it beneficial to use a family mediator or collaborative family lawyer to explore the options and reach an agreement. If this is appropriate in your case, our family lawyers can help to arrange this.
This is for general information purposes only and does not constitute legal or professional advice. Please note that the law may have changed since the date this post was published.
F v F - Acted for a German husband in a complex financial remedy matter. He decided to instruct IMD Solicitors after he had lost trust in his previously instructed solicitors and feared that he would not achieve a favourable outcome from the proceedings. The relevant assets were spread across the globe with some located in the UK (including a multi-million pound business), Gibraltar, Spain, Dubai, and Poland. The overall value of assets exceeded £24 million. The husband had been cut off from the matrimonial assets and excluded from control of the business that had been established by his family. The case involved the instruction of numerous experts, for business valuations, Capital Gains Tax reports, and opinions on the enforcement of orders in foreign jurisdictions, and dealing with several applications, including applications for orders to freeze assets, prevent the disposition of assets, for the joinder of parties, and to litigate conduct issues. The final result exceeded the client’s expectations.
L v L - We were instructed by a mother in a complex international children matter. She was required by orders of the UK courts to return the child to the UK from Poland. She had travelled with the child to Poland but, following unsuccessful application to extend her stay there in August 2017, she decided not to return to the UK because the child disclosed sexual abuse by a member of the paternal family and the father. In September 2018, the Polish court dismissed the father’s Hague Convention application for the child's return on the basis of Article 13(b), a decision which the father appealed. In March 2019, the father applied to the UK High Court for an order for the child’s return pursuant to the procedure set out in Article 11(6) – (8) of the Brussels IIA Regulation. Despite the father's unsuccessful Hague Convention application in Poland, the UK court ordered the return of the child. Article 11 does not allow the court of the returning country much discretion. After all of this, the mother instructed IMD Solicitors to apply to discharge the orders of the UK Court for the return of the child. Even in the face of the fact that most applications to discharge such return orders fail, we succeeded. We are currently awaiting a decision in the UK courts on a further application for the transfer of jurisdiction to the Polish courts where the mother resides with the child.
G v P - We represent a Spanish mother in respect of an urgent application for a Child Arrangements Order and Specific Issue Order in the UK seeking the relocation of the child to Spain. This was after the return of the child to the UK under Hague Convection proceedings which this mother lost in Spain.
She was asking for an order for the relocation of the child back to Spain and an urgent interim Child Arrangements Order to allow her to see the child pending the final outcome of the UK proceedings. IMD successfully argued that, regardless of the return of the child to the UK under the Hague Convention, the mother should be allowed unsupervised overnight contact with the child. We were delighted to be able to secure her contact with the child for Christmas and she said that it was the best Christmas gift she could have wished for. The outcome of the application for the relocation is pending.
S v V - We currently represent the father in Child Arrangements Order proceedings issued by the mother in relation to variation of a UK order made in the face of numerous other international proceedings. He is an Italian National who has been living in France for the last 20 years and the mother is a Lithuanian national. The child is now 11 years old and proceedings concerning the child have been ongoing in various jurisdictions for the majority of the child`s life. Contested divorce proceedings including child arrangements took place in Monaco. The French Court and authorities were also involved, and various proceedings had been ongoing between parties since 2013 in France and Monaco.
The parties’ divorce was pronounced in Monaco. Thereafter, in December 2020, the mother submitted an application to relocate to England with the child, and the relocation took place in June 2021. Upon relocation, the she lodged a child arrangement order application, seeking to register a judgment made in Monaco and to vary the same in respect of the contact arrangements between the father and the child. The father seeks for the child’s return to Monaco.
Due to the parties’ mutual allegations and the associated international elements, various authorities and courts that have been involved in the case, the local authority has become involved with the family and a guardian has been instructed to represent the child in the UK proceedings. At present, these proceedings in England are ongoing and the outcome of the professional reports regarding the family are awaited.
P v P - We have acted for the Respondent Husband in relation to the financial remedy proceedings in the UK. The parties had various assets in the UK and Romania consisting mainly of the portfolio of properties but conduct issues were raised by the Wife due to a business of the Husband over which she had lost control and her allegations of dissipation of assets. The value of assets excluding the business were in a region of £3 million.
K v K - We act in financial remedy proceedings for a wife who is a Polish national. The matter's complexity mainly comes from a dispute between the parties around land in Poland. Its value was initially in dispute but was then assessed by a joint expert to be in the region of half a million pounds. The total assets in this case are estimated to be worth over £1 million. The land in Poland is a subject to contract with a third party and is being leased as a photovoltaic (solar) farm. The division of the land to achieve an equal share of the assets is complicated due to the contract in place and plans for the future use of the land. Currently the parties are awaiting a final hearing but efforts are being made to reach a settlement with the aid of alternative dispute resolution and in order to save the parties money and avoid further delays.
R v O - We acted pro bono and worked together with a law firm in Poland to ensure that the Costa Rican Mother regains access to her child. The Mother's only child was abducted from the UK in 2014. The Mother was successful with the abduction case and the UK family courts ordered the return of the child. The orders were recognised in Poland but unfortunately due to various issues with the Mother's immigration status and court's delays in Poland, the orders were never enforced. The Mother was facing removal from the UK and prospects of never seeing her child again. We have corresponded with various courts in Poland dealing with international abduction matters and we decided that an application for contact should be issued rather than any proceedings for further enforcement of the orders, as the Mother had not seen the child for around 7 years. At the same we secured the Mother's stay in the UK making successful outside of immigration rules application to extend her stay. We now receive regular photos from the Mother with her daughter, as face to face contact is taking place. We helped to secure an order of the Polish courts for the Mother to see the child regularly in person, whilst when she instructed us she was facing a prospect of never seeing her child again and being deported to Costa Rica.
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