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.
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.
You should be aware that is against the law for a third party (including a solicitor) to negotiate a surrogacy contract for payment, but there are non-profit organisations that are permitted to offer you advice.
What is surrogacy?
Surrogacy is an arrangement in which a woman becomes pregnant and gives birth to a child for another person, or couple, who will become the legal parent(s) of the child. There are two main types of surrogacy available to gay couples in UK:
- “Traditional Surrogacy”when the surrogate’s own eggs are used with the sperm of one of the commissioning / intended Dads.
- “Gestational Surrogacy”when donor eggs are used and the surrogate is unrelated to the child.
Surrogacy is becoming popular amongst gay couples as it enables one father to be biologically related to the child.
Will we be our child’s legal parents?
In UK, it is only possible for one of you to be recognised as a legal parent on birth. This is because a child can only have two legal parents at one time and the birth mother will initially be recognised as one of those parents, even if she is acting as a surrogate with donor eggs.
If you are biologically related to the child your name can be put on the birth certificate as the child’s other parent, assuming your surrogate is not married or in a civil partnership. If your surrogate has a legally recognised spouse, that spouse will initially be child’s other legal parent, even if they do not have a genetic link to the child. In this situation the biological father will need to apply for a Parental Order to extinguish the legal status of the spouse and transfer it to himself.
Where does this leave the intended father without a biological connection?
The child’s other intended father will usually make an application for a Parental Order in conjunction with the biological father. This will extinguish the status of the surrogate birth mother leaving the intended fathers as the two people with parental responsibility. The application must be made within 6 months of the child being born but cannot be made less than 6 weeks after the birth. If a Parental Order is granted, then parental responsibility will be transferred to the intended parents and a new birth certificate can be issued with both father’s names on it. It is advisable to make the application as soon as possible as your child, who would usually be in your custody from birth, will be in a legal limbo until you have parental responsibility.
What is Parental Responsibility?
Parental Responsibility is legally defined as “all the rights, duties, powers, responsibilities and authorities which by law a parent of a child has in relation to the child and the child’s property.” It includes the responsibility of providing for and protecting the child.
Only people with Parental Responsibility can legally make important decisions in their child’s life, such as which school the child attends and authorising medical treatment.
Do we both need to have Parental Responsibility?
Although it might not seem like a big issue as you can still make joint decisions, it is advisable for both of the child’s intended parents to gain parental responsibility or you may encounter day-to-day issues. For example, if the father without parental responsibility needs to take the child to hospital on his own, he will not be able to authorise emergency treatment.
If something happens to the father with parental responsibility and the parental responsibility of the surrogate mother has not been extinguished, she will be legally responsible for the child. This can leave the child vulnerable at a time when they most need certainty in their life.
If you do not have valid Wills, there can also be issues with inheritance as your parental role will not be recognised by the Courts and the surrogate mother could become a Trustee of the child’s inheritance by default. Our blog on The Importance of Wills in Safeguarding Your Child’s Future explains more.
What if our child is born abroad?
Due to restrictive regulations, including the prevention of advertising and commercial gain in surrogacy in UK, it is common to use a surrogate based overseas. Popular countries include USA and Canada where commercial surrogacy is legal and parental responsibility can be transferred at birth. In this situation 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 legal partner (if relevant) will still be recognised as your child’s parents in UK, regardless of your status in the birth country.
If you would like legal advice on any stage of the surrogacy process including gaining parental responsibility for your child or surrogacy disputes, you can contact Louise Allard or Sabrina Bailey on 020 7993 2936 or make an enquiry through our online system.
It is still a welcome development.
People have been campaigning for years for a variation to UK surrogacy law as it was seen to be discriminatory to single parents. The change was finally approved in December 2018 and came into force on 3 January 2019.//get_template_part( 'template-parts/post/content', get_post_format() );
At Allard Bailey, we recognise that adoption and surrogacy are not just legal processes but deeply personal journeys, often following exhaustive conception attempts, or failed IVF. Our specialist solicitors can sensitively guide and advise you on the right legal framework to achieve the rights to protect you and your child. We appreciate that more than ever, in the run up to Christmas and New Year thoughts inevitably turn to family life and plans and hopes for the future.
In the words of Lady Justice King (as was) there are “serious legal and practical difficulties which can arise where men or women, desperate for a child of their own, enter into informal surrogacy arrangements, often in the absence of any counselling or any specialist legal advice.”
If you or anyone you know are considering adoption or surrogacy or you are an intended parent it is critical to get early advice, and here are some reasons why:
• To apply for an adoption order or a parental order: Both orders have “transformative effect” including extinguishing a surrogate parent’s rights.
• To be aware of the timeframe: The law requires an application for a parental order in a surrogacy arrangement to be made within 6 months of a child’s birth and UK domicile. We can guide you on some of the permitted extensions under the case law.
• If you’re single*: As it stands, a single person cannot make an application for a parental order. Whilst this has been declared to be incompatible with human rights in the case of Z (A Child) (No 2) , this is the current position and until this is reviewed we can advise you on alternative applications. (*update: the law changed on 3rd January 2019 and single people can now access Parental Orders in UK)
For a no obligation discussion, call us now on (+44)020 7993 2936 or email us at email@example.com//get_template_part( 'template-parts/post/content', get_post_format() );