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From the costs and medical requirements to the law and parental leave, we take a look at what it means to be a surrogate and intended parent.
Sex and the City‘s Sarah Jessica Parker. Nicole Kidman. Kim Kardashian. There are countless high profile parents who have chosen to have children via surrogacy.
But how much do you really understand of the practice?
In April, Queer Eye host Tan France announced he was expecting a child with his husband via surrogacy. Weeks later model Naomi Campbell announced that she’d welcomed a baby girl, prompting speculation she too had used a surrogate. In July, actor Amber Heard announced that four years since deciding she wanted to have a child on her ‘own terms’ she welcomed a daughter, Oonagh Paige, via surrogate.
As the topic of surrogacy increasingly comes to the forefront of parenting conversations, and to mark National Surrogacy Week (August 2-8, 2021), it’s about time we explored the ins and outs of the process more thoroughly.
Here is our surrogacy guide, explaining what it is, how it works, and the legal implications surrounding the practice:
According to Surrogacy UK, surrogacy is when a woman (a third party) carries and gives birth to a baby for a couple who are the ‘intended parents, because they ‘cannot conceive, or carry a child to term, due to a medical problem’.
Common reasons why intended parents may look for a surrogate include recurrent miscarriage, repeated failure of IVF treatment, premature menopause and an absent or abnormal uterus.
Since 2010, same-sex couples have also been able to become intended parents in the UK.
In the UK, surrogacy became legal via the Surrogacy Arrangements Act 1985 and while it is a legal form of fertility treatment, it is illegal to advertise for a surrogate, or to advertise to be a surrogate, contrary to in the US. So, in the UK, you can become a surrogate or search for a surrogate through surrogacy organisations.
The surrogate will receive treatment at a fertility clinic in order to help transfer the embryo to the womb.
Surrogacy UK explains some fertility clinics may require a surrogate to undergo a ‘mock transfer’ to ensure she is physically capable of being a surrogate – a procedure compared, in how it feels for the woman it is performed on, to a cervical smear.
The surrogate will receive treatment at a fertility clinic to insert the sperm into her reproductive canal or she will use artificial insemination at home.
In the UK, commercial surrogacy (paying a surrogate) is illegal, except for their reasonable expenses (explained below).
However in the US, intended parents can expect to pay a surrogate what is known as an ‘inconvenience fee’ (typically valued between $20,000 and $35,000) in addition to expenses.
Financial reimbursements are agreed upon in a legally-binding surrogacy contract.
In terms of transatlantic surrogacy: while it’s not illegal for UK-based intended parents to enter into a surrogacy agreement in the US, the UK court will have to decide whether to authorise payments made to the US surrogate and an agency in order to grant a parental order.
Brilliant Beginnings outlines that expenses in the UK can include travel costs, treatment costs, maternity clothes, counselling or professional support in connection with surrogacy, childcare costs and any loss of earnings.
Reimbursement may be agreed as a lump sum or paid on a case by case basis as the expenses arise.
Since 2010, same-sex couples have also been able to become intended parents in the UK
If intended parents pay a surrogate more than her reasonable expenses, the court must consider whether to authorise the payment.
Intended parents must also account for fertility treatment costs and any other legal fees including the drawing up or help with parental order applications via an organisation.
The average cost for expenses is estimated to range from around £7,000 to £15,000, but it entirely depends on the case.
As the risks of illness and complications are much higher in the first pregnancy, it is strongly recommended that surrogates have given birth to at least one child previously, and preferably have completed her own family.
While there is no age limit for surrogates in most surrogacy organisations, there are considerations, given that the risks of pregnancy increase with age. Applications are usually only accepted from surrogates aged 21 and over.
In the UK, the surrogate is the legal mother of any child they carry and has the right to keep the child even if they’re not genetically related.
Parenthood, however, can be transferred by a parental order or adoption. It’s important to remember that until a parental order or adoption is signed, a surrogate can keep the baby if she wishes to.
The child’s legal father or ‘second parent’ will be the surrogate’s husband or partner unless:
If a surrogate doesn’t have a partner (including marriage or in a civil partnership) the child will have no legal father or second parent unless the partner actively consents.
Linder Wilkinson, a gestational surrogate who gave birth to a baby girl called Edurne in 2015, previously told ELLE UK that she hopes to see a change in the law so that intended parents, rather than a surrogate, become the legal guardians of a the child from birth.
‘When I gave birth to Edurne, my name and my husband’s name had to go on the birth certificate while her parents had to apply for a parental order to receive their own birth certificate,’ said Wilkinson.
‘As a surrogate, you don’t want to have your name on the child’s birth certificate. If there was a medical emergency, you’d hate for there to be a delay in treatment because doctors need to speak the legal parent (the surrogate) first when they don’t even live in the same house as the child.’
A parental order is a set of orders made by a court about parenting arrangements for a child. You cannot apply for a parental order if you’re single.
In 2016, 368 parental orders were awarded to enable people using surrogacy to become legal parents – up from 194 in 2012.
In the UK, the surrogate is the legal mother of any child they carry and has the right to keep the child even if they’re not genetically related
To apply for a parental order, the intended parents must be genetically related to a child (for example, the egg or sperm donor) and in a relationship where the couple are married/civil partners/living as partners.
Under UK law, a couple must have the child living with them and reside permanently in either the UK, Channel Islands or Isle of Man.
In a traditional or straight surrogacy (in the case when the intended parents aren’t genetically related to the child) or if the intended parent is single, adoption is the only way to become a child’s legal parent.
‘It is incredibly rare for a surrogate to change her mind about handing over the child,’ explains Stephen Ashe from Brilliant Beginnings.
‘There have only been a tiny handful of disputed surrogacy cases, compared with thousands of successful surrogacy arrangements.’
If a surrogate decides to keep a child, the intended parents can ask the family courts to get involved and make a decision about who the baby should live with.
As a result, the court then decides what is in the best interest of the child in the particular circumstance.
Guidance on how to start a family using a surrogate has been published for England and Wales for the first time by the government.
The BBC reports it recommends written agreements to cover how the baby is conceived and any future relationships between surrogate and child.
When a parental order is made, the surrogate’s legal responsibilities are extinguished. However, it is usual for surrogates and parents to stay in touch.
The relationship between surrogate and intended parents is explored in The newly-released film The Surrogate. The film sees gay couple Josh and Aaron’s best friend Jess agree to be their surrogate. However, 13 weeks into pregnancy the trio learn that their baby will be born with Down’s Syndrome, which results in a journey of self-exploration and questions regarding disability, sexuality and race.
If a surrogate gives birth abroad, intended parents can only apply for a parental order if they live in the UK. In order for the child to enter the UK, they will require a visa.
Gov.uk outlines that using a surrogate abroad can be complicated because different countries have different rules.
You cannot apply for a parental order if you’re single
Surrogacy laws differ depending on the country. In places such as France, Germany, Italy, Spain, Portugal and Bulgaria, all forms of surrogacy are banned.
Commercial surrogacy is legal in some US states (click here to find out more), and countries including India, Russia and Ukraine.
Intended parents may be eligible for adoption pay and leave and paternity pay when using a surrogate.
Those ineligible for paid leave may be able to take parental leave or annual leave but this depends on the case.
Every pregnant employee has the right to 52 weeks’ maternity leave and to return to their job after pregnancy and birth, regardless of whether they’re a surrogate or not.
While it isn’t illegal, help from an organisation is advised for the benefit of both intended parents and surrogates.
‘Some people do enter into private arrangements without the involvement of an organisation (often friends and family members) but having the support of an agency is a sensible protection if you are working with someone you don’t know,’ says Ashe from Brilliant Beginnings.
Trust is the key component in a surrogacy partnership.
The role of a surrogacy organisation, such as Surrogacy UK or Brilliant Beginnings, is largely to make sure the surrogate and intended parents feel supported and well-informed.
‘Once we feel that we have found a good match, we would send information to each including anonymised profiles and some photos and a letter that the surrogate and also the intended parents have written,’ explains Ashe.
When a match is made, the ‘team’ (comprising of a surrogate and intended parents) is encouraged to talk to each other and learn about each other’s lives before they make a decision about what they want to do next.
‘We then swap everyone’s details, and they have a chance to start talking to each other. When they are ready they would then move towards bringing together an agreement between each of them, and we assist with this.’
Yes, all organisations in the UK take a fee which can come from annual membership or fixed fees. These fees are paid for by the intended parents and dependent on what services are required from the surrogacy organisation.
Some organisations offer full matching and management services which includes finding a surrogate, screening and creating an agreement between the parents, or alternatively can provide help with specific parts of the surrogacy process, as so wished for by the parents.
The BBC outlines that there are currently no internationally recognised laws for surrogacy, which leaves many parents, surrogates and children vulnerable or stateless.
Difficulties may also arise depending on the parents’ legal status and in the case of a divorce/split. For example, in the case of traditional surrogacy, the father who supplied the sperm might have parental rights over the intended mother who didn’t provide an egg.
For surrogates, there can be the risk that if there is a medical abnormality or unforeseen complication with the child’s gestation that they could be at risk of the intended parents abandoning the child.
As regulations differ from country to country, there’s also risk of exploitation and abuse of surrogates.
Find out more about the services provided by Surrogacy UK here and Brilliant Beginnings here.