Commercial surrogacy vs altruistic surrogacy – what is the difference?
Commercial surrogacy is widely thought of as the preserve of the rich and famous. But what makes a surrogacy arrangement commercial rather than altruistic? And is it illegal in the UK?
On the face of it, commercial surrogacy involves the payment of compensation to a surrogate mother; meaning that she profits from the arrangement. Altruistic surrogacy, on the other hand, involves either no payment or payment of only out-of-pocket expenses to a surrogate mother; meaning that her motivations are merely benevolent.
However, the reality and intricacies of individual arrangements both in the UK and overseas differ widely. Generally speaking, surrogacy arrangements entered into in the UK fall into the bracket of altruistic (or ‘expenses only’) and those entered into overseas fall into the category of commercial.
Why is the UK thought of as being the home of altruistic surrogacy?
Due to our legislation, which specifies that surrogates should be paid only in respect of their ‘expenses reasonably incurred’, UK surrogacy has grown up under an expenses-only veil. In a culture of believing that only out-of-pocket costs can be covered, we naturally associate the arrangements which take place here with altruism, since UK surrogate mothers are not, on the surface, profiting from carrying a child for another family.
What is the reality?
Whilst there are many purely altruistic arrangements taking place in the UK every year (i.e. between family members), most surrogacies here do not fit squarely into that box. Instead, many feature an element of compensation; even if this is combined within an umbrella sum designed to cover any and all anticipated expenses/eventualities.
When it comes to the court process (applying for a parental order post-birth) the family courts have developed an approach of accepting the payments made as ‘reasonable expenses’, as long as the total sum does not exceed a certain amount (a figure which has gradually increased over the last few years). This is often done without close scrutiny as to how the sum was broken down and what, for example, the exact out-of-pocket expenses were for the surrogate, thus leaving room for an element of ‘profit’.
For completeness, paying a UK surrogate a commercial sum or enabling her to profit from the arrangement is not illegal. Rather it is discouraged and therefore subject to approval by a High Court judge, if this fact is acknowledged, before a parental order can be made. This makes the associated court process a different experience to that of a (largely) expenses-based arrangement.
How do payments for surrogacy work overseas?
In surrogacy-friendly foreign destinations, payments are usually dealt with in a much more transparent way. Surrogacy agencies are likely to provide intended parents with a breakdown of anticipated costs at the outset; part of which will include a sum for the surrogate’s expenses as well as a separate figure for her compensation.
This means that parents are knowingly entering into a commercial arrangement and, when they come to apply for their parental order in the UK following the birth, will need to go through a High Court (rather than local family court) process in order to have the commercial element of their payments authorised and the order made.
Are the two types of arrangement really different?
Our experience of hundreds of surrogacy arrangements globally has taught us that surrogates are rarely 100% altruistic or 100% commercially-motivated; very often there is a hybrid of the two which is why surrogacy can work so well for all involved where it has been entered into from a fully-informed stance.
Often the sum received by a UK surrogate under the guise of ‘reasonable expenses’ is comparable to that received by a surrogate in an openly commercial destination; the only difference being how the payments are categorised and communicated. The end result is, hopefully, exactly the same; the intended parents end up with their longed-for child and the surrogate feels she has made a positive difference to the life of another family and, maybe, has a (relatively) small financial reward in return.
Surrogacy is surrogacy, no matter what the sums involved. Commercial surrogacy, although at first blush prohibited in the UK, does take place regularly here. The Courts repeatedly accept or overtly authorise such payments in order to make parental orders and secure the legal status of the families involved, on the basis that this is in the child’s best interests. Purely altruistic surrogacy also exists; but very often arrangements are a combination of the two.
To find out more about commercial or altruistic surrogacy arrangements, the law in respect of payments and how the Courts deal with this issue, please contact our specialist consultant solicitor Nicola Scott.
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