Over the past five years, there has been a substantial increase in the number of family law cases related to the Human Fertilisation and Embryology Act 2008. Since 2012, there has been a 139.13%. increase in parental orders concerning surrogacy (from 2012 to 2019).

Who can be a surrogate?

Requirements for Surrogates:

1. Age:

• Surrogates with children must be at least 21 years old.
• Childless surrogates must be a minimum of 25 years old.
• There is no upper age limit for surrogates, but eligibility for treatment at a fertility clinic is a prerequisite. Some UK clinics are open to treating surrogates in their mid to late 40s.

1. Medical Health:

• Surrogates should be in good health and physically capable of carrying a pregnancy. GP reports are obtained during the application process, but having a medical condition may not necessarily hinder your application.

1. BMI (Body Mass Index):

• Surrogates are ideally expected to maintain a healthy BMI, typically no higher than 35.

1. Residency:

• Surrogates must be residents in the UK. For those returning to the UK following treatment you must be domiciled in the UK to obtain a parental order

Who can be an IP “Intended Parent”?

The following criteria need to be met

   Inability to Sustain a Pregnancy Personally

     Unless male, intended mothers must furnish a letter from their GP as evidence of their inability to carry a pregnancy. Additional supporting documents from a fertility clinic may be requested.

   Relationship Status

       When applying as a couple, intended parents should be in a long-term relationship or married. Single individuals can apply for a parental order.

   Gametes

       At least one prospective parent must have a genetic connection to any child born through surrogacy. This means they can use their own embryos, or opt for either donor sperm or donor eggs. The use of double donation is not permitted. t is a prudent step to familiarize yourself with the legal regulations of the country where you are engaging a surrogate. For instance, in Greece, it is prohibited for a surrogate to use her own eggs. Seeking expert legal counsel in the jurisdiction where the fertility treatment is taking place is highly recommended to ensure compliance with all legal requirements and to navigate any potential complexities.

   Residency

       Intended parents must be domiciled in the UK and, if in a relationship, must be residing together.

       If not a UK resident, you must be able to demonstrate your domicile status and your capacity to provide support to your surrogate throughout the pregnancy.

Surrogacy Agreements

Are surrogacy agreements legally binding in the UK?

While surrogacy agreements lack legal enforceability in the UK due to concerns about restricting the surrogate's autonomy, having a surrogate agreement can still offer advantages. By establishing clear expectations and reaching a consensus on important matters, the agreement plays a crucial role in nurturing a supportive and constructive relationship throughout the surrogacy process. It can also show intention when applying for a parental order.

 Nevertheless, it is worth noting that the Law Commission has suggested reforms, including the coverage of expenses. Further information on these proposed reforms can be found at this link: https://www.lawcom.gov.uk/project/surrogacy/.

Issues to consider

You may wish to consider the following issues in your surrogacy agreement:

Contact

Contact arrangements are a crucial aspect to consider:

• Is the surrogate inclined towards ongoing contact post-birth, or does she prefer limited interaction?
• Keep in mind that preferences can evolve during the pregnancy, so remaining flexible is crucial.
• When it comes to pregnancy contact specifics, it's essential to maintain flexibility, particularly during the initial months when the scope of discussions may be somewhat limited.

Shared Values

• Ensuring alignment on shared values, worldviews, and interests is vital, although these discussions ideally should have occurred earlier in the process.
• For instance, if you identify as gay or lesbian, you may consider seeking a surrogate within the LGBT community to find common ground and understanding.

IVF Rounds

• Determine the number of IVF rounds before considering cessation and flexibility in the number of eggs transferred in each attempt.

Abstaining from Intercourse

• Discuss the period of abstaining from intercourse during fertility treatment and attempt to conceive.

Medications

• Agree on taking necessary vitamins and medications. Address any allergies or exclusions from prescribed medications.

Medical Procedures

• Be open to necessary procedures, which may include internal scans or caesarean sections if issues arise.

Miscarriage and Amniocentesis

• Plan for how to handle miscarriages, including the number of attempts.
• Consider responses to amniocentesis recommendations and potential outcomes, including abortion.

Selective Reduction

• If the surrogate becomes pregnant with multiple babies and selective reduction is advised, discuss how both parties would handle this scenario.

Death of Intended parents

• In the unfortunate event of the intended parents' death before or without a parental order being granted, it's crucial to establish a plan for the child's guardianship. Discuss and determine who will retain custody of the child in such a situation, ensuring the child's well-being and best interests are the top priority.

Birth Plan

• Determining who will be present at the birth and understanding the wishes of both the surrogate and intended parents is of utmost importance. For the surrogate, it's worth contemplating whether the IPs should remain outside the delivery room, or if a support companion can offer assistance during labor. There may even be a preference for the prospective parents to receive notification after the baby's birth. It's imperative to ensure that the prospective parents are accommodating and considerate of these preferences.
• Decisions regarding the birth location, whether it will take place at home, in a hospital, or another setting, need to be made. Additionally, it's essential to discuss whether you are open to following the hospital's recommendations, especially in the case of unexpected complications. For example, the surrogate may consent to a hospital birth, but the IPs should acknowledge their responsibility as advocates for the baby's well-being.

Finances

• You have the flexibility to decide whether the intended parents provide expenses after the baby's birth or at regular intervals throughout the pregnancy. It is essential to ensure that the surrogate is not financially burdened, so the latter option is typically recommended. Keep in mind that there may be additional expenses for each transfer and in the case of multiple pregnancies. Furthermore, it is advisable for the surrogate to have life insurance, with the specific amount agreed upon, to provide coverage for various scenarios, including complications during pregnancy and childbirth.

These discussions are critical for ensuring a transparent and respectful surrogacy arrangement that aligns with the desires and values of all involved parties. Open communication and understanding are essential throughout the process.

At Wildcat law, we can help you navigate through the issues that can arise during your fertility journey. If you are an intended parent, our specialist lawyers will guarantee your perspective is heard.  As a surrogate, representation will ensure a clear and open dialogue, respecting individual preferences, and safeguarding against coercion.