The discussions surrounding the agreement will help you to identify and address potential issues before they occur. It is also useful to have a record of everyone’s intentions should there be a dispute or disagreement down the line.

Another thing to remember is that it is very common for fertility clinics to refuse medical treatment unless there is an agreement in place. Because it protects all parties during the medical procedures, especially the surrogate, many clinics will not begin treatment until they have seen evidence of your Surrogacy Agreement.

There are many variables that should be considered and addressed as part of the surrogacy agreement, which will usually be both lengthy and detailed. The aim of the contract should be to clearly outline each party’s role, rights and responsibilities before, during and after the birth takes place. We have generated a list of provisions that could be included (this is not an indefinite list):

• The role and intent of the parties involved

• Details of any medical treatments and the location/name of the clinic they will be performed at, for example, where insemination will take place

• Finances for the surrogate - including all disbursements. This usually involves compensation for the discomfort, pain, suffering and inconveniences related to the pregnancy itself, as well as necessary living expenses including all the surrogate’s foreseen and unforeseeable costs such as pregnancy clothing. These amounts should be specified and so should detail about when they will be paid and by whom

However, in the UK the surrogate can only be provided with reasonable expenses, which covers things like loss of earnings, pregnancy clothing, travel expenses to medical appointments, medication and so on.

• The surrogate’s health and responsibilities to take care of herself and the baby throughout her pregnancy, such as the promise not to smoke, drink excessive amounts of caffeine, take illegal drugs or drink alcohol

• The surrogate's duty not to participate in high-risk activities such as skiing, horse riding or going on rollercoasters 

• If she has one, the surrogate's partners responsibilities may also be included, such as not to smoke around her during the pregnancy

• Who will be present at prenatal appointments and who should be contacted if there are any issues with the pregnancy and how

• Sensitive issues such as details that may trigger selective termination

• The birthing plan including who will be present, how and where the birth will take place (with the understanding that births do not always go to plan)

• Communication between all the parties, for example, whether all parties are required to keep in contact and how, including the time limit for responding

• What will happen after the birth takes place including who has custody of the child.

Legal Advice

As it is against the law for a third party (including a solicitor) to negotiate a surrogacy contract for payment in UK we are unable to draft or review the terms of a Surrogacy Agreement.

Do we need one?

We would always recommend that you prepare a formal Pre-conception Agreement as the process itself will help you to reflect on your hopes and expectations, whilst encouraging you to address the more delicate issues that are otherwise easy to avoid.

If you set everything out in writing it will be easy to refer to in the future, which can help you to avoid disputes.  Whereas people’s understanding or interpretation of verbal agreements may be different and can often change over time, which can lead to disputes.

Another advantage of a Pre-Conception Agreement is that you will all be equal at the time of drafting, which is more likely to result in an arrangement that is a fair reflection of everyone’s wishes.

What should it cover?

There are no set rules for what an agreement should contain, but it should reflect your vision of how the arrangement will work.

Topics that you may want to address include:

• your practical plans for conception
• the birth including who will be present
• who will have parental responsibility?
• how will you agree on a name? What surname will the child have?
• parenting roles such as who the child will live with and spend time with
• who will have financial responsibility?
• what will happen if parents separate or enter new relationships?
• who will be appointed as guardians?

Who should be included in the agreement?

To ensure all emotional as well as practical concerns about how the arrangement will work can be addressed, it is advisable for the biological parents as well as their respective partners (if appropriate) to be involved in preparing the agreement.

Are they legally binding?

Pre-conception Agreements are not legally binding, which means that if there is a dispute the Court is not bound to enforce them, but they will be considered as evidence.  They also provide a starting point for discussions, mediation or negotiation through solicitors, which may enable you to resolve any disputes without involving the Court.

Legal Advice

If you are planning to start a family with a donor or become a co-parent and would like legal advice, please contact Louise Allard or Sabrina Bailey on 020 7993 2936.

What is surrogacy?

Surrogacy is an arrangement in which a woman agrees to become pregnant and give birth to a child for another person who will become the legal parent of the child.

Surrogacy arrangements are an increasingly popular way for people to grow their family in the UK. The woman who carries the child is called the “surrogate” and the person or people who will become the child’s legal parents are called the “commissioning” or “intended” parents.

There are two main types of surrogacy arrangements in the UK:

• “Straight” or “Traditional Surrogacy” when the surrogate’s own eggs are used with the sperm of the commissioning father.
• “Host” or “Gestational Surrogacy” when both eggs and sperm are used from the commissioning parents, or from other individuals, and the surrogate is unrelated to the child.

Is surrogacy legal in the UK?

Surrogacy is legal in the UK, but it cannot be commercialised or advertised. The act of surrogacy is considered a gift and it is therefore not legal to enter into a surrogacy arrangement where there is commercial gain. You are not able to advertise for a surrogate and surrogates are not allowed to advertise themselves. Any arrangements that you reach with the surrogate are not legally binding so you must transfer parental responsibility (the legal right and authority to care for and make life decisions for a child) through the Court.

What will my rights be when the child is born?

When the child is born the surrogate will automatically become the legal parent with parental responsibility, regardless of whether the child was conceived using traditional or gestational surrogacy. The commissioning father (who is also the biological father) can be recorded on the birth certificate and gain immediate parental responsibility if the surrogate is unmarried, but if she is married her husband is automatically the legal father.

As a child in UK cannot have more than two legal parents, parentage must always be transferred by the Court, most usually by a Parental Order. The application for the Parental Order must be made within six months of the child’s birth and must satisfy a number of factors. The surrogate (and her husband) must fully and freely give consent, but can do so no sooner than six weeks after the birth. Once the Parental Order is granted, the child’s birth will be re-registered and a new birth certificate will be issued so the child is treated as if born to the applicants.

There is a period of time before the Parental Order is granted when you are likely to have the child living with you, but without legal parental responsibility, so it is important to apply for your Parental Order well within the time-frame.

What if my child is born abroad?

It is common for people living in UK to use a surrogate based overseas, particularly from countries such as USA and Canada where commercial surrogacy is legal. If you do so, you may need to gain parental responsibility in both the country of birth and in UK, so it is advisable to seek legal advice in both jurisdictions before any attempt to conceive.

As UK law stands, unless you obtain a Parental Order in UK, the surrogate and her husband (if relevant) will still be recognised as your child’s parents in UK, regardless of your status in the birth country.

Is it necessary to have a Surrogacy Agreement?

A Surrogacy Agreement sets out the expectations and intentions of the parties throughout the surrogacy and after the birth. Although they are not legally binding in UK, they are recognised in many jurisdictions and it is helpful to have one so you are clear on what will happen before the Parental Order is granted. The discussions surrounding the agreement will help you to identify and address potential issues before they occur. It is also useful to have a record of everyone’s intentions should there be a dispute or disagreement down the line.

You can make a Surrogacy Agreement at any stage in your journey, but it is advisable to prepare one at the outset. Agreements made before an attempt to conceive are sometimes referred to as Pre-conception Agreements, although Pre-Conception Agreements are more commonly used for shared parenting arrangements.

You should be aware that is against the law for a third party (including a solicitor) to negotiate a surrogacy contract for payment in UK, but there are non-profit organisations that are permitted to offer you advice.  Click here for more detailed information on Surrogacy Agreements.

Legal Advice

For further advice on surrogacy in UK, international surrogacy or surrogacy disputes please contact Louise Allard or Sabrina Bailey.