Ep. 9 - Surrogacy in the UK

Welcome to the Explaining Family Law podcast with your host Tim Whitney and Jen Curtis of Melzenry. Each episode will talk about a family law topic and explain the key elements, give some real life examples and try and do some myth busting. This is a podcast aimed at people who are interested in family law, whether experiencing a separation or looking to start a family or indeed people who work with clients in this area. We'll talk about a wide variety of topics from children to pensions mediation to surrogacy. As you'd expect from a podcast from the law firm, we're going to start with a warning. Legal principles in every podcast are correct at the date of publication, but please do not rely on it as legal advice. If you'd like to speak to us about your own legal requirements, then please contact one of our expert lawyers. This is the first of two podcasts about surrogacy and we're starting off by looking at the position in the UK. I'm delighted to be joined by two experts, ladies and gentlemen from my Manchester office and Colin Richardson based in the London office. So let's start as we always do with a myth buster. The myth around surrogacy I think is that in the UK surrogacy is illegal. Where is what would you say about that? Yeah, it's a really common myth, but it is a complete myth. Virrogacy is perfectly legal in this country and lots of people create their families through surrogacy here. So I think anybody thinking about this shouldn't get worried that it's something that they can't do. Brilliant. And I suppose starting at the beginning, how do people in the UK go about entry into surrogacy arrangement? So yeah, people go about it in different ways. In the UK, we have some restrictions on surrogacy agencies and surrogacy organisations, what they can and can't do. And you can't advertise for surrogate technically or advertise a willingness to be a surrogate, but the two reach really arrive going through a surrogacy organisation in the UK, which a nonprofit or an independent route. So finding a woman who you already know who's willing to be a surrogate or increasingly finding a surrogate through a number of various social media sites that seem to have groups that are designed to help people find a surrogate. And so assuming you found the person that's willing to be a surrogate, what's the sort of first step is there? Do you enter into a contract, an agreement? What happens first? Yeah, so, I mean, the first step really is to make sure you're all on board surrogacy arrangements in the UK aren't enforceable. And one of the restrictions in UK law is that it's actually a criminal offence for lawyers to prepare and draft a surrogacy agreement for a fee. So, but definitely having an agreement in places is an important part of the process in terms of recording what everyone's intentions are and what the likely expenses are going to be. And so everyone's on the same page and also some fertility clinics, particularly if you're pursuing a surrogacy, will often require that to be an agreement in place before they will allow the treatment to proceed. I think just to add that it's really important people have chats about what they're all expecting from the arrangements because, understandably, people want to get on with the process of actually having the baby. You know, that's what everybody's agreeing to do. But I think sometimes there are issues that might come up that maybe having some counselling before to work out what everybody's agreeing to, what everybody's intending and those help avoid problems further down the line. That's very good advice. And so, just talking back, I think Colin, you mentioned expenses are there rules around what you can and can't pay for or what a surrogate would expect to be reimbursed or how the cost dealt with, I suppose, is my question. So I think issues of payments in surrogacy, particularly UK surrogacy, are another area where there's a lot of misunderstanding and misconceptions. We do have some criminal laws around commercial surrogacy and I don't think you can read a newspaper article about surrogacy in the UK without it saying somewhere in there that commercial surrogacy in the UK is illegal or it's illegal to pay a surrogate more than expenses in the UK, which isn't really true. The rules about the criminal laws around payments relate to third parties. So it's a criminal offense, for example, for a solicitor to be paid for drafting a surrogacy agreement. Surrogacy organisations in the UK have to be non-profit, so we're not allowed to have commercial surrogacy organisations like you see elsewhere in places like US. But in terms of what parents or intended parents and surrogates can agree between themselves, there aren't really any restrictions in the criminal law because the law that creates a criminal offense expressly excludes intended parents and surrogates from it. And that was intentional. Parliament didn't want to taint children born through surrogacy with what they call the potential criminality of their parents. So it's entirely open for somebody in the criminal law to make a payment that exceeds out of pocket expenses. It's not enforceable, but you can make it. Where the issue comes in is when you apply for a parental order to establish your parentage post-birth. And that's because the court has to look to see whether there's been any payments over and above reasonable expenses. And in most domestic surrogacy cases, the court say, well, this is an expenses only surrogacy arrangement. Therefore, we don't need to authorise anything. But if you do make any payments that exceed expenses, then you have to ask the judge or the court if he might have magistrates to authorise any payments over and above the expenses that have been paid. And that is routinely done. And we've not yet had a case where the court has refused to do so. So it's a little bit unclear because we have this situation where the law doesn't encourage people to make payments over and above expenses. But then it doesn't really prevent it either. I mean, Rose, what do you say about that? Yeah, I mean, I think people should be reassured if you make payments to a surrogate, you're not doing anything wrong. That's perfectly legal. But the court might have to consider whether or not those were for more than reasonable expenses. Now, there's obviously a lot of expenses that can be incurred during a pregnancy, you know, things like maternity clothes, vitamins, you know, maybe treatments that surrogate might be having all of those sort of things, lots of earnings, you know, if they've got their own children, you need a babysitter whilst they're going to appointments, etc. There's lots of sorts of costs that might be incurred. I think what Colin and I tend to see a lot of is people often make payments and sort of tranches, you know, people aren't asking their surrogate to provide receipts to them for anything and everything. And that's really common. And sometimes that can mean that there may be an element that's not necessarily sort of accounted for as an expense, and the court might have to consider whether to approve that. But I've not seen a case yet where the court hasn't approved payments that were deemed to be for more than reasonable expenses. You know, I think what the court's concerned about is making sure people aren't buying children sort of trafficking of children. That's what the court's really concerned about, you know, and I think people should be reassured if they're making payments to a surrogate. There are within a sort of level that the court has seen before and the court's likely to approve those payments if they need to. Yeah, I think the only thing I would really add to that is that sometimes people say the expenses are going to be £15,000 and that's an agreed figure at the start of the process. And so there's some guesswork in that because you don't know what the exact expenses are. And those don't seem to have any problems going through the court, but for people who are going through the process, it's just good to have record keeping of the payments that are made because you'll be asked to produce evidence of what's been paid to a surrogate if you go through the parental order process. So start, as you mean to go on, some people set up a separate bank account so that all transactions to their surrogate goes from that account and they can just produce an easy statement. You know, people understanding the breakdowns and understanding what what payments are for is really helpful and also to be transparent. The biggest issues I've seen of when people have tried to disguise payments as something else and because they're so scared that the court might think that this doesn't relate to an expense that they try to cover it up and that can cause issues with the court. So it's better to just be fully upfront about what has been paid, honest and transparent and you shouldn't have any problem. And this also goes back to raises earlier point about having agreed expectations or having discussed everything in advance because the expenses for one person could mean, as you say, travel to the hospital and additional food or vitamins or things like that, but for someone else it could mean a whole lot more. So I suppose there are expenses and there are expenses. And so assuring that there is an agreement on what that's going to look like is probably quite helpful at the outset of the thought. So let's move forward nine months and the baby arrives. What happens next? So at birth in this country the surrogate is always going to be legal mother as a child at birth. Now in most surrogacy arrangements the baby will be handed to the intended parent at hospital, you know, usually people have agreed where and when the child is going to be handed to the intended parents and they may even have been present at the birth itself depending on what the surrogate wants to happen. And the parents then need to think about applying for parental order and they're a time limit of six months from the child's birth to apply for that order. Now the court can extend that time limit in at certain circumstances, but we'd always recommend that wherever possible, intended parents are making sure they submit their application for the parental order within six months of the child's birth. A parental order is an order that makes sure the intended parents are the legal parents of their child so the surrogate isn't a legal parent anymore if the surrogate has been is married or in a civil partnership and her spouse or partner has been treated as a legal parent at birth, it will also ensure they're not a legal parent anymore. So that's really one of the key things that needs to happen is is making sure they submit that application promptly, you know, if they haven't the court can still allow the application to proceed, but it's just an extra hurdle that if at all possible should be avoided. And so I suppose the obvious question would be what happens if the surrogate changes their mind or doesn't want to consent to the intended parents becoming the legal parents? It's a question that Rose and I get asked very often by intended parents who are considering surrogacy. In reality, the court can't make a parental order without the consent of the surrogate unless you can satisfy the court that the reason she's not consenting is because she can't be found or is she's incapable of giving her agreement. The reality is that the court will embark on a welfare exercise to determine with whom the child should live if there is a dispute. And so if there was a situation where the surrogate wanted to keep the child, then the likelihood is that the intended parents apply to the family court for a child arrangements order to seek for an order that the child lived with them. And the court has a wide discretion in the orders that it can make and ultimately if the court decides that it is in the best interest of the child to live with the intended parents, the court can make that order, they can also give the intended parents parental responsibility. And in some cases have enabled the intended parents to make parental decisions about reference to the surrogate. And they'll consider as well what arrangements there should be in place if any for the child to have some contact with the surrogate who would remain in those circumstances and legal mother. There are also cases and I've done, I think I've done three of them actually in over the last 13 years or so, where surrogates have not wanted to keep the child because the reality is that surrogates don't go into this process wanting to have a baby, but sometimes things go wrong during the pregnancy. And the relationship can sour. And in some cases there have been surrogates who have not wanted to engage in the parental order and didn't want to consent to the parental order, even though they didn't want to care for the child. And in those cases the court couldn't make a parental order, but potentially parents could apply for an adoption order. There's a case come out today, as actually as we're recording this podcast where that happened in relation to a child who just turned 18, and then it was a case the other week where somebody had applied for an adoption order in respect of a much younger child where the court wasn't satisfied that it needed to make an adoption order and was happy with the orders that said that the children should live with the intended parents. So it is difficult in cases where that issue arises, but it's not one that we see very often in practice. I think probably in the 40 nearly years that we've had surrogacy legislation in this country and since the first known surrogacy case in the UK was 1985, probably had less than 10 cases I would imagine, over that time where surrogacy agents have had that full breakdown that have gone through the court, so they are a very small number of cases where those issues arise. Yeah, it's a really common fear for intended parents that the surrogate will change their mind and either want to keep the child or for whatever reason refuse to consent to a parental order being made, but I think it is so rare that that actually happens and where it does happen, there's usually been issues earlier on, perhaps, miscommunications about what everybody wants or falling out during the pregnancy, which goes back to that sort of where we started off earlier talking about how people need to make sure everybody understands what they want from an arrangement, and I think what I'd also say having acted for some surrogates is I think surrogates also have a fear that intended parents will change their mind and wait to apply for a parental order and they'll be stuck being a legal parent to a child they don't want, you know, so I think it works both ways, but the circumstances in which arrangements break down are really a minority, it's just I think sometimes those make great news paper headlines that you see more of them rather than what Colin and I see sort of day to day which is arrangements which work well, where intended parents get their parental order, you know, everybody knows what they're intending to do and it works out okay. Great, thank you, base, and from the point of view of the surrogate, again if we sort of assume that parental order has been made and I think as you said Colin, they were no longer the legal parent after that. Do they have any rights to be involved in the child's life to have any information given to them about sort of their childhood and future and how does that work generally? I think surrogacy in the UK tends to be what they often call relationship based surrogacy where you have, because it's all based on trust, you need to really build up that kind of a relationship of trust before you embark upon a surrogacy arrangement with anyone. And so after a parental order you usually see there being some form of continuing contacts between the intended parents, now legal parents, the child and the surrogate, but legally she's not parent anymore and so she wouldn't have a right to apply for any sort of orders in relation to the child if an issue did arise, but there isn't actually a case on this I don't think, but I think probably a surrogate would be able to get a mission of the court to bring an application to spend time with a child, even if a parental order had been made, because there is a wide discretion that the court has to allow that to happen, but for most it hasn't really come up before and I think the reason is because with surrogacy in the UK in particular people tend to continue that relationship on some level with the surrogate. I think it's probably important to add to that that if a surrogate were to bring a case to try and spend time with the child, that the focus isn't going to be on the surrogate playing a parental role, that's not their role to play, it's going to be more about the child's right to know their origins, you know, and to spend some time with the person who carried them and who in some cases the surrogate said has been used would have a genetic relationship with them, so it's much more about the child's right to understand their origins and I think one of the things that's important for people to consider is that of the benefit and positive impact for children that knowing where they've come from has, there's been some research done around how children are who are born through surrogacy, sort of cope with understanding that their creation and entry into this world has been a bit different. And actually children who know from an early stage do really well, it's sort of the same with donor conception children who know from an early stage and understand a bit about how they were created do really well, and so I think, you know, something intended parents should think about what they would want for their child in terms of sort of being able to know where they've come from, but the emphasis very much should be, it's about that, if not about someone else playing a parental role or stepping in to the parents' shoes at all, you know, if the parental order is made, they are the legal parents and it's very much just about a child's right to know about their origins rather than anything else and it shouldn't be used to try and sort of step on their shoes. That nicely leads into the question I was going to ask next, which is from the child's point of view, what rights or mechanisms do they have to find out about the surrogate? So let's imagine a situation where the surrogate isn't involved and the child reaches a point where they would like to find out about their origins, how would that work? So it partly depends upon how they've been conceived at the end of the day and whose sort of egg-thin sperm has been used. There isn't at the moment a register in terms of the surrogate-seat register, so a register of surrogates, but there are registers in respect of donors where treatments take place at a UK licensed clinic and some identifying information that can be provided to children when they're adults. Now it is obvious from long form birth certificate if there has been a parental order, so that would probably be someone's clue that they've been created through surrogacy and they may be able to apply to the court for a copy of records that are held by the court, but it's unlike children who are conceived using donors, we don't have the same sort of registration of surrogates, so there's going to be slightly more layers to then get the information I think. I think it's just worth noting there that we don't have a surrogacy register at the moment, but the Law Commission in March of 2023 did make some recommendations for surrogacy law reform and that included that there would be a surrogacy register for people going forward who are born through surrogacy to be able to have access to that, so that's something that might change in the future, but we don't know if those recommendations are going to be brought in and whether we're going to have a surrogacy register. So my final question is whether you have to be living in the UK and/or being a British national to apply for a parental order? Yeah, so it's a bit of an interesting question because at the moment our law requires you to be something, which we call domiciled in England, so you might be living in this country but not be domiciled here, domiciled is effectively where your spiritual home is, often it's the same as people's nationality, but it isn't necessarily, everybody has a domiciled origin based on where they were born and their parents domiciled birth, but you might acquire a domiciled choice if you move to another country and have strong connection there, but you might live in this country and have lived in this country for a long time, might even have acquired British nationality, but still not be domiciled here, so it's really important for people who have international connections that before entering into a surrogacy arrangement, they're taking advice about will they actually be eligible for a parental order here? Because there are occasions when people may have lived here for a long time but aren't actually domiciled here and that does mean they wouldn't be eligible for a parental order at the moment. It is something the law commission's recommended is changed, but or in the hands of the government as to whether or not that change happens. Yeah, I just add to that that it's not just about applying for parental order if you're doing surrogacy in the UK because when your child is born through surrogacy in the UK the surrogate goes on the birth certificate and the parental order is how you get a birth certificate with you on there and so if there is an issue about domicile and you do surrogacy and you can't get a parental order, your surrogate is potentially left on a birth certificate that she doesn't want to be on, so it is really important especially for people who are undertaking surrogacy here and they will naturally want a birth certificate that reflects the intended parentage of their child. And just to be clear, we're talking about the domicile of the intended parents rather than the surrogate. Yes, we're talking about the applicants for a parental order who are the intended parents. Brilliant. So I think just to be helpful to end on top tips from both of you, you've done a brilliant job of demystifying a process that sounds quite complicated so I think it would be good to just end with some top tips. So I think my top tip for anyone is spend the time before you enter into an arrangement working out what everybody wants, you know, invest the money maybe in them, canceling legal advice that everybody understands what you're expecting and also what the process at the end of the day will be to get the parental order to make sure you're eligible because, you know, Colin and I see it all the time, people have often had a struggle to try and have a baby for a long period of time, may have struggled to find a surrogate and understandably when they do find that person, they're really excited, they want to go ahead as soon as possible, but I think it's just about stepping back and just making sure everybody's happy and understands what they're doing getting some early advice before you enter into an arrangement. I think, I mean, the danger of going second is that a person who goes first takes your top tip, but I think that that raises point is absolutely the top tip. We see most of the cases that we see go very well, they're very happy outcomes, but the case is that don't come out, have such happy endings are usually because people didn't take the time, they didn't objectively look back and think, is this too good to be true? The difficulty with surrogacy in UK is that the demand for surrogates far out ways this supply, and so when if you have a situation where a woman is saying she's prepared to carry a child for you, it can be quite difficult for people to turn that option down because they don't know if they're going to find somebody else or how long that's going to take, but it's so important to ensure that your values are aligned in terms of important things like what would you want to do if there was a scan in the pregnancy that revealed certain medical condition, for example, Down syndrome, these are obviously issues that anyone who is pregnant has to face, but when you're introducing that into the context of surrogacy, the woman who's carrying the child isn't necessarily going to be the woman who's going to be caring for the child, and obviously it's the woman's right to choose what happens to her own body, but you need to make sure that you're on the same page and you share the same values around that. Make sure that the arrangement you're entering into is comfortable to you. I've seen some cases where family members have come forward, and sometimes family type arrangements aren't always the most comfortable arrangements to be in. There can be lots of pressure from other members of the family, both in terms of entering into the surrogacy arrangement and some judgment as well. Take the time to make sure that you're comfortable with the arrangement and you all want the same thing. It can be very difficult for people in this situation to sort of put the breaks, and we all see this. There's the end goal, and it's a very long process, and you want to get there as soon as possible, but taking the time early on to make sure everyone's on the same page, expectations are aligned, reduces the scope for conflict and the scope for difficulties in the future. Thank you both for a fascinating discussion. If you'd like to find out more, then we have another podcast with Colin talking about international surrogacy and the various issues that that raises. We're going to record a Q&A episode at the end of the series, so please submit any questions you have either using the Q&A box on Spotify or via our Instagram, family.loyers.