Surrogacy is a topic that comes with a lot of myths and misconceptions around the process. It's a complex process that involves legal, ethical and emotional considerations for all parties involved.
In this article, we’ll bust some of the most common myths surrounding surrogacy and the legal aspects involving it.
“Surrogacy is for celebs or the super rich.”
The most common surrogacy myth is that surrogacy is for celebs and the super rich. Surrogacy is for everyone and most of the couples or individuals we see turning to surrogacy are people who have been on long and often difficult journeys to become parents.
The costs of surrogacy do vary significantly depending on whether or not you use a fertility clinic, whether or not you have treatment at home or abroad, whether you use a family member/friend as a surrogate or a third party and whether you instruct lawyers to advise you on the application for a parental order or make the application yourself. So it’s easy to see why there’s a misconception around this.
“Paying a surrogate more than their reasonable expenses is illegal in the UK.”
Intended parents or surrogates do not commit an offence if they make or receive payments over and above reasonable expenses. However, the court will have to consider whether to authorise any payments which have been made over and above reasonable expenses in deciding whether to grant a parental order and will be focused on what is in the child’s best interests.
It’s really important that intended parents keep a clear record of what is paid, receipts and are able to put in context the sums they have paid and the reasons why they were paid.
“You don’t need a parental order if you have a foreign birth certificate or foreign court order naming the intended parents as the legal parents.”
Unfortunately, surrogacy law in England means that without a parental order, the surrogate is the legal mother of the child regardless of whether or not there is a foreign birth certificate or foreign court order naming the intended parents the legal parent. Who will be the legal father will depend on the precise circumstances.
Intended parents who are eligible for parental orders in the UK should apply for a parental order so they are recognised as their child’s legal parents. Where parental orders are not available on the circumstances of a case, alternative legal avenues may be explored.
“If the surrogate wants to keep the baby there is nothing the intended parents can do.”
It’s very rare for a surrogacy arrangement to break down and most surrogates do not view the child as their own in any way. Usually where arrangements do break down is because there has been a misunderstanding about what everyone’s expectations are entering into the arrangements or something has happened during the course of the pregnancy, which hasn’t previously been discussed and which there is a disagreement over.
It’s important for anyone considering entering into a surrogacy arrangement to take legal advice in advance so that they understand their legal rights and responsibilities and to give everyone an opportunity to think about the important issues they need to discuss before they proceed. Whilst a surrogacy agreement is not binding it can be a useful way of recording those discussions.
Although a surrogate’s consent is required for the court to make a parental order a court can make other orders based on what is in the child’s best interests, for example to deal with who the child lives with, what time they spend with everyone involved and who has parental responsibility. Sometimes this might mean that the child lives with the intended parents rather than the surrogate and that they are given parental responsibility for the child.
“Single people or unmarried couples can’t apply for a parental order”.
Single parents have been able to apply for parental orders since 2019, provided they have a genetic link.
If couples are not married or in a civil partnership, they can still apply for a joint parental order provided the court is satisfied that they are in an enduring family relationship. Recent case law has seen a parental order made in favour of two people who intended to parent together but were not in a romantic relationship – so the courts have been quite creative in applying the law to modern families.
Our team of family lawyers specialised in surrogacy can help if your going through or looking to go through surrogacy. Talk to us today.
Our content explained
Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.