Surrogacy in the UK: how does it work?
We often see celebrities or TV shows talking about using surrogacy as a way to have a baby, but could it be an option for you? We look into how surrogacy works, here in the UK.
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With Kim and Kanye using a surrogate to have their fourth child, surrogacy has once again made the headlines.
Kim already has two children (North and Saint) but has a condition called placenta accreta in both cases, a potentially life threatening condition which sees the placenta abnormally attach to the uterine wall.
Using a surrogate was the best option for Kim to have a third baby (Chicago) and now, a fourth. But what does surrogacy actually involve? And is it even legal over here in the UK?
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What is surrogacy?
According to the non-profit organisation, Surrogacy UK, surrogacy is when a woman carries a baby for a couple who are unable to conceive or carry a child themselves.
Usually the intended mother cannot conceive, or carry a child to term, due to a medical problem.
Common reasons why someone may look at surrogacy include:
- recurrent miscarriage in spite of all possible treatment
- repeated failure of IVF treatment
- premature menopause, often as a result of cancer treatment
- a hysterectomy, or an absent or abnormal uterus
Is surrogacy legal in the UK?
Surrogacy UK says that it is legal in the UK, but there are strict rules surrounding paying for and finding a surrogate.
- No third party should be involved on a commercial basis – that is, receive fees for ‘brokering’ a surrogacy relationship.
- Advertising for a surrogate is not allowed, nor is advertising to be a surrogate
- The surrogate can only receive payment to cover the expenses that she has incurred in being pregnant for her intended parents.
Since April 2010 it has also been possible for same-sex couples to undertake surrogacy in the UK.
What are my surrogacy options?
Depending on your situation and health, there are two types of surrogacy to consider.
The first option is traditional surrogacy. It is the simplest and least expensive form of surrogacy. Your surrogate uses artificial insemination to get pregnant on your behalf. She'll do this using an insemination kit to become pregnant using the intended father’s semen.
This means that the baby will therefore be conceived using the surrogate’s egg, which can be harder emotionally for both the surrogate and the intended parents.
The second option is called gestational surrogacy.
This is a more complex process involving IVF to fertilise eggs from the intended mother (unless donor eggs are being used) with semen from the intended father(unless donor sperm is being used).
These fertilised embryos are then implanted into the surrogate's womb.
Some prefer this option as it means that the surrogate doesn't use her own eggs, and is genetically unrelated to the baby.
How do I find a surrogate?
There a number of non–profit organisations in the UK that can legally help UK surrogates and intended parents find each other.
There are three in the UK: Brilliant Beginnings, Surrogacy UK and COTS. These agencies can also help you find a fertility clinic and will offer support right through your surrogacy journey. They will require a membership fee, which helps
Of course, you can also ask a trusted friend or family member.
How do we become legal parents of the baby?
In the UK, the birth mother is the legal mother until the intended parents make an application to the court for a parental order. This can only be done once the baby has been born. Only obtaining a parental order at this point transfers legal rights from the birth mother to you and your partner when a surrogate is used to have a child.
Some legal experts say this needs to change, to offer more protection to the intended parents, including UK fertility lawyer Natalie Gamble, who set up her own Surrogacy agency, Brilliant Beginnings.
'In the UK, it’s all done on trust and you have to sort out the legal issues after the baby’s been born, which in our view is all far too late,' says Natalie.
'We’re keen to see a law which pulls all of that legal process forward so there’s a contract and the right people are recognised as the legal parents immediately from birth,' she says.
How can I apply for a parental order?
Once your surrogate has had the baby, you can apply for a parental order to become the baby's legal parent.
To get this, the following rules must apply:
- You must be genetically related to a child to apply for a parental order, ie the egg or sperm donor, and in a relationship where you and your partner are either married, civil partners or living as partners. You cannot get one if your are single.
- You and your partner must also have the child living with you and reside permanently in either the UK, Channel Islands or Isle of Man.
Find out more about how to become a child's legal parent here.
How much should I expect to pay for my surrogate's expenses?
Natalie from Brilliant Beginnings says that 'it is for you to agree with your surrogate what payments should be made to her. Expenses should always be agreed in advance and put in writing (even though any contract is not legally binding under UK law).'
She also addresses a common misconception regarding 'expenses':
'It is a popular misconception that there is a fixed amount (often said to be £15,000) which is the accepted figure for reasonable expenses for surrogacy in the UK. In fact, there are no set rules and what is reasonable varies depending on your surrogate's circumstances.'
So what should you expect to pay for?
'You can expect to reimburse your surrogate for her expenses including travel costs, treatment costs, maternity clothes, childcare costs and any loss of earnings. This might be agreed as a lump sum or paid for individually,' says Natalie.
'Just remember that if you pay your surrogate more than her reasonable expenses, the court will have to consider whether to authorise the payment when you apply for your parental order after the birth. We recommend that you seek legal advice about the court's approach,' she says.
You will also need to account for your fertility treatment costs and any legal fees if you update your wills or want support with your parental order application.
What if my surrogate chooses to keep the baby?
Even if you’ve a signed deal with your surrogate and have paid for her expenses, it's important to remember that surrogacy contracts aren’t enforced by UK law.
The woman who gives birth is always treated as the mother in UK law and has the right to keep the child - even if they’re not genetically related. However, parenthood can be transferred by parental order, once the baby is born.
Brilliant Beginnings says the following on its website:
'Surrogates should not see the baby that they carry as their own, and be counselled to ensure that they are settled in this perspective before being cleared to proceed. Typically, surrogates are women who enjoy pregnancy or find it easy, and want to help someone else to create a family.'
Surrogacy UK says that within its members, there has never been a surrogate that has wished to keep the baby, and all have resulted in a parental order being granted.
Will I be entitled to maternity leave once my surrogate has the baby?
After much campaigning, from April 2015 the government finally introduced adoption leave rights (which are equivalent to maternity leave) to intended parents in surrogacy cases.
So, once you become a mum via surrogacy, you'll be entitled to adoption (surrogacy) leave and pay from birth. This if as long as you apply for a parental order and are granted one.
Find out your legal employment rights regarding statutory leave and pay, here.
You can always find advice and support from others looking at surrogacy as an option, in our Coffeehouse forum. Join in the chat below ...
