Due to the lack of global surrogacy regulation, destinations offering surrogacy services come and go. Thailand, for example, was a popular destination for Brits, with many successfully pursuing arrangements there for a number of years. However, surrogacy was very much existing without the explicit support of Thai legislation and, due to a government crackdown, was recently shut down to foreign nationals.
Other destinations, such as India and the Ukraine, have tightened their policies in recent years, preventing certain categories of prospective parents from pursuing arrangements there. Sadly, gay couples fall into those categories.
Whilst new destinations are constantly popping up as being the places to go for surrogacy, such as Mexico and Nepal, very few remain viable options for gay couples for long due to shaky legal frameworks and the opportunity for exploitation of parents.
The USA and the UK remain the most well-established and safe destinations for gay surrogacy, though the disparity between the two is vast.
The law in the UK makes surrogacy challenging, though not impossible, to pursue if you do not have a willing surrogate volunteer amongst your friends and family. Finding a surrogate can be tough since it is illegal to advertise for surrogacy. Many people choose to join online forums or surrogacy organisations, though the wait to find a suitable surrogate can take months, and often longer than a year. In most cases you will also need to source donor eggs, which similarly attracts a wait if you do not have a willing donor known to you.
The notoriously vague surrogacy framework in the UK discourages the payment of more than expenses, though in practice most surrogates receive between £10,000 and £16,000 and this is not problematic. Surrogacy contracts are not legally binding, nor possible to have drawn up by a professional, though they are often useful to have. Despite the press suggesting otherwise, surrogacy arrangements rarely go wrong in the UK and, where they have been entered into with the proper forethought and care, they are an enormously positive experience for all involved.
Once your baby is born you will need to apply to court for a parental order, which will extinguish your surrogate’s parental status and reassign it to both of you fully and equally. Whilst the practical hurdles of setting up your arrangement can be challenging, the court process is designed to be straightforward and is usually heard at your local family court. Once granted, the parental order will result in a new birth certificate for your child naming you both as parents. Most couples handle the court application themselves, following an initial steer as to the legal aspects and process.
There are a number of surrogacy-friendly states in the US that offer a very professional service to international couples, helping them to find a surrogate, an egg donor and manage all the associated US legal and practical aspects of the arrangement. Typically the timeframe is much less in the States due to the ‘one stop shop’ service most surrogacy agencies there are able to offer.
However, the cost of pursuing surrogacy in the USA is often well over £100,000 depending on the State, the surrogate and the agency selected. Though, of all the international destinations, it is the safest and enables children born there to have American citizenship, which they can hold in tandem with a British passport. This also means that families can return home within a few weeks of birth, rather than waiting the several months which are associated with other destinations.
On your return home to the UK you will need to apply for a parental order (as explained above), since UK law does not recognise foreign birth certificates and will instead apply its own rules as to who your child’s parents are (the surrogate and, if she is married, her husband). This involves a High Court application, since the judge is tasked with untangling international conflicts of law and scrutinising commercial surrogacy payments, which are discouraged here.
Despite this dramatically different court process, there has never been a parental order refused following an international arrangement; it is rather a case of being prepared for the hurdles. Some parents handle this process themselves, though most will have some degree of legal help before and during the application.
Understanding your options and the associated UK legal aspects of your plans is crucial in setting up an arrangement that fits with your means and objectives and to making that as legally straightforward as possible. To find out more, please contact Nicola Scott, our specialist fertility lawyer, who has been helping couples with the legal side of their surrogacy arrangements for over five years.
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