Surrogacy is when a woman carries a baby for someone who is unable to conceive or carry a child themselves.
Couples or individuals who cannot have a child themselves and who are considering surrogacy as a way to become a parent are referred to as intended parent(s) or IP(s). To apply for a parental order – which is the way that legal parenthood is transferred from the surrogate to the IP(s) – at least one of the IP(s) in a couple must be a genetic parent of the child born to them through surrogacy.
There are many reasons why people turn to surrogacy. These include:
- A hysterectomy or an absent or abnormal uterus
- A serious risk to health that may result from pregnancy
- LGBTQIA parent(s) wanting to create a family
- Recurrent miscarriage
- Repeated failure of IVF treatment
There are also many reasons why women decide to become surrogates. Some have experienced trouble conceiving themselves, some have seen friends or family struggle to have a family and some wish to support families. Money should not be a motivation for surrogacy. Surrogates in the UK are expected to be paid no more than reasonable expenses.
The government supports surrogacy as part of the range of assisted conception options. Surrogacy starts with deciding which surrogacy organisation to work with, deciding which surrogate or intended parent(s) to work with, reaching an agreement about how things will work, trying to get pregnant, supporting each other through pregnancy and then birth, applying for a parental order to transfer legal parenthood and then helping your child understand the circumstances of their birth.
There are two types of surrogacy – straight surrogacy and host surrogacy.
Straight surrogacy is when the surrogate provides her own eggs to achieve the pregnancy.
The intended father, in either a heterosexual or male same-sex relationship, or an individual, provides a sperm sample for conception through either self-insemination at home (there may be additional health and legal risks to carrying out self-insemination at home compared to treatment in a clinic) or artificial insemination with the help of a fertility clinic. If either the surrogate or intended father has fertility issues, then embryos may also be created by In Vitro Fertilisation (IVF) and transferred into the uterus of the surrogate. If the surrogate conceives and delivers, she will be genetically related to the child.
Host surrogacy is when the surrogate doesn’t provide her own egg to achieve the pregnancy. In such pregnancies, embryos are created by In Vitro Fertilisation (IVF) and transferred into the uterus of the surrogate using:
- The eggs of the intended mother fertilised with sperm of the intended father or donor; or
- The eggs of a donor fertilised with sperm of the intended father, where the intended mother cannot use her own eggs or the IPs are a same-sex male couple or individual
Any person providing their eggs or sperm for the purpose of treatment in a surrogacy arrangement must be treated as a donor for the purpose of screening and therefore will need additional testing.
If the surrogate conceives and delivers, she will not be genetically related to the child.
Starting the surrogacy process
Assisted conception units are not allowed, by law, to recruit surrogates. So you have to find one yourself. Ideally the volunteer should have had at least one child, be under the age of 35 and be both mentally and physically fit.
It is not generally recommended that those considering surrogacy do so independently. You may wish to consider joining one of the main UK surrogacy organisations:
Childlessness Overcome Through Surrogacy
Surrogacy organisations can help surrogates find intended parent(s) and vice versa. Joining an organisation may also help you to reduce the risks associated with surrogacy; the organisations listed above perform various checks (including medical and Disclosure and Barring Service) for all new members and aim to provide support throughout the surrogacy journey.
Emotional demands
It’s important that both intended parent(s) and surrogates feel they can cope with the emotional demands of a surrogacy relationship and fully understand the implications for themselves and for any existing children that the surrogate may have.
Both the surrogate and IP(s) will need to see one of our fertility counsellors, all of which are British Infertility Counselling Association accredited. Surrogacy organisations also hold detailed information sessions that ensure that IP(s) and surrogates understand surrogacy and the risks and implications.
Financial implications
Surrogacy has financial implications and it’s important that the intended parent(s) understand the kinds of costs that may be associated with surrogacy, including reasonable expenses for the surrogate and medical costs. When considering surrogacy costs, it’s advisable to agree on an estimate of expenses in advance of surrogates and IP(s) getting to know each other properly. Surrogates should keep a record of any expenses incurred and any reimbursements made, which can be made available to the parental order reporter and the judge as part of the court hearing for a parental order.
Legal considerations
Before entering into a surrogacy arrangement, you need to be aware of the legal position. Surrogacy is legal in the UK, although surrogacy arrangements are not enforceable in law. The Surrogacy Arrangements Act 1985 makes it clear that it’s an offence to advertise that you are seeking a surrogate or are a potential surrogate looking for intended parent(s). It’s also an offence under that Act to arrange or negotiate a surrogacy arrangement as a commercial enterprise.
Parental order process
When a child is born through surrogacy, the intended parent(s) should apply to the family court for a parental order. The parental order transfers legal parenthood from the surrogate (and her spouse or civil partner, if she has one) to the IP(s). It can only be made with the surrogate’s consent. The parental order process takes place after birth and involves the family court and a court appointed social worker. This provides a valuable safeguard for the best interests of the child. Parental order applications are typically heard by magistrates. They will be heard by a High Court judge if the child is born overseas or there are questions over whether the parental order criteria are met. Most surrogacy cases in England and Wales are straightforward and it is rare that a parental order to transfer parenthood to the IP(s) is not considered in the best interests of the child.