Early last year, The Guardian reported that a shortage of UK-based surrogates was driving UK couples abroad and that nearly two-thirds of UK parental orders (used to confer full parental status on the intended parents) were now for babies born abroad with surrogacy agreements.
Although a surrogacy agreement is legal in the UK, there are some rules and restrictions. For example, you cannot advertise that you are trying to find a surrogate. It’s also illegal to pay a surrogate in the UK. You are, however, able to pay reasonable expenses.
Surrogacy agreements are not enforceable in the UK, meaning that any surrogacy agreement will not be legally binding. When asked to uphold surrogacy agreements, courts will first and foremost act in the best interests of the child. For anyone considering surrogacy in the UK, there is a lot of uncertainty ahead.
It’s important to understand that, under UK law, the woman who gives birth to the child is the mother and is able to keep the child, whether or not they are genetically related. This is the case even if the intended mother provides the egg (gestational surrogacy).
All of this means that, in the UK, a surrogacy agreement between a surrogate and the child’s intended (and possibly biological) parents, is essentially based on trust. Because of this, many couples are choosing to go abroad to find a surrogate to carry their child.
Before you decide whether to go to a different country to locate a surrogate and enter into a surrogacy agreement, it’s essential to understand your chosen country’s laws on surrogacy and whether there’s a possibility these laws could change in the future.
In the past, UK couples would often go to countries such as Thailand or Nepal but these countries have now banned commercial surrogacy. The result of this, is that some couples, who had their embryos ready in foreign countries, are no longer able to use them.
India, also previously a popular country for couples to travel to in search of a surrogate, is also intending to ban commercial surrogacy.
Commercial surrogacy agreements are legal in some US states, as well as a handful of other countries worldwide.
Whether you choose to use a surrogate in the UK or to go abroad, there are risks involved. It’s important to ensure that you are fully aware of the rights of both you and your partner and those of the surrogate.
By speaking to an experienced solicitor, you can make sure that you fully understand what to expect and the implications of choosing to have your child through a surrogate, in order to help you to make an informed decision before entering into any surrogacy arrangement, in the UK or abroad.
For more information on surrogacy agreements please visit our Legal Library.
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