Using a surrogate mother – do you both need legal advice?

    Using a surrogate mother – do you both need legal advice?

    Yes! With surrogacy in the UK becoming an increasingly mainstream way to build a family and more clinics than ever before treating surrogates and intended parents, the awareness that both sides need independent legal advice is growing.

    Why do surrogates need legal advice?

    Historically, the focus has been on intended parents to obtain legal assistance in anticipation of the post-birth parental order process. However, due to its growth over recent years, and with many prospective parents turning to surrogacy organisations to be matched with a surrogate mother and then to fertility clinics to arrange their treatment, surrogacy in the UK is naturally becoming a more structured process.

    Happily, this front-loaded approach has brought to the fore the importance of all parties being fully informed at the outset; whether that be through the assessment and preparatory process by surrogacy organisations or the counselling sessions provided by clinics. Hand in hand with the practical and emotional sides go the legal aspects, but whilst surrogacy as a route to parenthood is now well-trodden and steadily falling under a recognisable framework, the underlying law remains trust-based and outdated.

    What are the key areas for consideration when using a surrogate?

    • UK law on parenthood treats surrogates as the legal mothers of the children they carry, no matter what the biological connection. In turn, if they are married, their spouses will have parental status too. It is crucial for surrogates to understand this, what it means for them and how it can be managed and eventually resolved.
    • Surrogates also have a central role to play in the parental order process and will need to understand the associated criteria along with the various aspects that they will need involvement in.
    • Surrogacy agreements are not binding under UK law and cannot be relied upon if things go wrong. It is however important to be transparent and to have a record of what has been agreed. Putting an agreement in place can be used as an opportunity to set things up thoroughly at the outset and ensure the most straightforward arrangement.
    • Surrogates should put a Will in place (or update their existing Will) to ensure that the surrogate child does not inadvertently inherit from them and to protect the intended parents’ right to care for their child in the event of the surrogate’s death.

    How can we help?

    If you are working with a UK clinic, you will be strongly encouraged (if not required) to seek independent legal advice before treatment begins. If you are not working with a clinic, it is still important that both intended parents and the surrogate mother obtain advice and clarification on the particular arrangement before going ahead.

    Using a surrogate can be an entirely positive experience for all involved where everyone is well informed. We offer appointments by telephone, Skype and in person to advise on the legal aspects of all surrogacy arrangements.

    For further information, please contact our specialist consultant solicitor, Nicola Scott.

    Are you considering pursuing surrogacy abroad? Download our free guide and find out all you need to know.

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