UK Government update guidelines to surrogacy in England and Wales

Prospective parents have recently been handed useful new guidance concerning surrogacy in the UK. The Department of Health and Social Care has published new guidelines designed to assist surrogates, intended parents and healthcare professionals through the surrogacy process.

The guidance notes that

"the Government supports surrogacy as part of the range of assisted conception options. Our view is that surrogacy is a pathway, starting with deciding which surrogacy organisation to work with, deciding which surrogate or intended parents 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. This guidance gives more information about each stage."

The key points to be taken from the guidelines include:

• A recommendation that intending parents or surrogates use an endorsed surrogacy organisation to arrange and facilitate the process; informal arrangements, particularly if involving an international element, are risky and to be avoided if possible;
• A recommendation that both parties enter into a written surrogacy agreement to cover everything form the method of conception and potential expenses to the nature of the relationship between the surrogate and the child;
• A recommendation that the intended parents are open and supportive in helping their child understand how they were born.

The information is a clear indication that the Government has recognised the increasing role of surrogacy in the route to parenthood, evidenced by a significant year on year rise since 2012.

It should be noted that whilst altruistic surrogacy is an established and legal way of creating a family, surrogacy agreements are not legally binding and are therefore unenforceable in the UK. Intended parents have to apply for a parental order to be able to declare themselves the legal parents of the surrogate child. This must be done between six weeks and six months of the child’s birth.

Surrogacy through commercial means is illegal in the UK (as per the Surrogacy Act 1985). and it is a criminal offence for an individual or agency to organise or facilitate surrogacy on a for-profit basis. However, the legal framework allows for a surrogate mother to receive reasonable pregnancy related expenses from the intended parents, as assessed by the Family Court.

Despite their lack of enforceable status, UK Family Courts have been broadly sympathetic to upholding the terms of a surrogacy agreement in favour of the intended parents, though they have wide discretion to act in whatever they deem to be the best interests of the child. And although it does not override any other legal obligations surrounding a surrogacy arrangement, the Government advice is to have a surrogacy agreement in place so that all parties are clear about their role in the process and to avoid potential disagreements further down the line.

Sarah Jones, from Surrogacy UK, worked with the Department of Health and Social Care to produce the guidance.

She said: "It is vital that we help surrogates, intended parents and children to have a positive experience and that we support this modern form of family building."

Read more about surrogacy in the UK here