A fertility lawyer brings us up to speed
By Natalie Gamble
For the 1 in 7 couples struggling with infertility who dream of building a family, surrogacy can offer hope through an alternative route.
Research shows that children born through surrogacy, are inevitably much-wanted, experience no long-term difficulties and are thriving. However, the world of surrogacy can be extremely complicated leaving you with endless unanswered questions. To help make this journey that little bit easier we asked fertility lawyer, Natalie Gamble for answers to the most commonly asked questions:
- What is the difference between traditional/gestational surrogacy?
A traditional surrogacy is when the surrogate mother uses her own eggs to conceive the child that she is carrying for the intended parents or individual, meaning the surrogate is genetically related to the child. In a traditional surrogacy the sperm of the intended father is used.
In a gestational surrogacy the surrogate is not the biological mother of the child as she does not provide the egg. Instead, the intended mother goes through an IVF cycle (or eggs from a donor are used) to create embryos using the sperm of the intended father which are then transferred to the surrogate at a fertility clinic. The gestational surrogate therefore has no genetic relationship to the child that she is carrying.
- What are the legal issues with surrogacy?
Surrogacy is not illegal in the UK but it is restricted by various legal rules. For example, UK surrogacy arrangements are not legally enforceable, even if a contract has been signed and the expenses of the surrogate have been paid. Therefore, UK surrogacy arrangements are built on a foundation of trust and it is very important to build and nurture a strong relationship with your surrogate. There is then a legal process to follow after the birth to make the intended parents the legal parents.
If you go overseas to find a surrogate, then you may enter an agreement which is legally recognised in the destination country, and you may be registered on the birth certificate in the country where your child is born but, you will still need to follow a legal process to be recognised as your child’s legal parent in the UK. You will also need to have a plan for coming home and dealing with immigration.
After a surrogate mother has given birth, the intended parents must make an application to the family court for a parental order to become the baby’s legal parents. The effect of the order is to transfer the rights and obligations of parentage to the intended parents, providing certain conditions are met. This must generally be made to the court within six months of the birth of the child. It is important to understand how this process works before you embark on a surrogacy arrangement, so you are sure your family can become legally recognised and you know what you need to do.
- How do I find a surrogate?
Your first decision is whether you stay in the UK or go overseas. Surrogacy is very possible in the UK, but matching cannot be arranged by commercial organisations including fertility clinics, so you will either need to join one of the non-profit agencies/organisations (Brilliant Beginnings, COTS and Surrogacy UK – all of which offer slightly different services) or find a surrogate yourselves (perhaps among friends or family, or an ‘independent’ surrogate found online).
Some parents instead choose to go overseas, where it is possible to engage commercially-run agencies who can match with a surrogate with a more certain time frame. Common destinations are the USA, Canada, Georgia and the Ukraine. UK agency Brilliant Beginnings, as well as supporting UK surrogacy, advises UK parents to help them navigate these choices and decide on the best path for them, and also manages US surrogacy journeys who decide this is what they want to do.
- Is surrogacy possible for single parents?
While it has never been illegal for UK single parents to conceive with the help of a surrogate, the lack of legal remedy afterwards has long meant that they are not securely recognised as sole legal parents. That is because parental orders have until now only been available to couples, making the issues around parentage and nationality difficult for single parents to resolve. However, things are changing.
We won an important case in the High Court last year which ruled that the current law discriminated against single parents in breach of their human rights. In December 2016 the government told Parliament that it was planning to change the law, and we are expecting single parents to be able to apply for parental orders from summer 2017 at the earliest (including single parents who already have children).
- How much will the process cost?
The costs for surrogacy vary enormously, depending on the route you choose. In the UK, you may need to budget for surrogate expenses (typically £12,000 to £18,000), agencies fees/membership costs, fertility treatment, life insurance, wills and legal advice/representation for your parental order.
It is a common myth that it is illegal to pay a surrogate in the UK, but in fact it is only an issue the family court has to consider as part of the parental order application. If you go overseas for surrogacy, different costs will apply and it is important to budget carefully.
- Are there any plans to change the law?
Through both NGA Law and Brilliant Beginnings, we have been at the forefront of the UK campaign for surrogacy law reform since 2007. We have already won a few successes (including rights for same-sex parents in 2008, for single parents through our human rights case last year, and maternity leave rights for parents through surrogacy in 2015) but we want to see the law brought up to date more fully.
We are campaigning for recognised surrogacy agreements and pre-birth orders so the right people can be recognised as the legal parents of their child immediately from birth, and children’s welfare is better protected. The Law Commission is currently considering whether to review how to bring UK surrogacy law up to date, while the Department of Health is looking at producing best practice guidance on surrogacy which we are helping to write, alongside other UK surrogacy organisations.