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International Surrogacy: A Guide by Joanna Kay

Babies Gammy and Pipah, the twins born under a surrogacy arrangement, are back in the news today.

The commissioning couple took Pipah to live with them in Australia and left Gammy, who has health issues, with the surrogate mother who is based in Thailand. The surrogate mother has now said that she hopes to travel to Australia to see baby Pipah.  Their story highlights the difficulties involved in international surrogacy.

Different countries have different surrogacy laws.  For example, in the UK, making a commercial surrogacy arrangement is a criminal offence whereas in some other countries it is legal to do so.

Under UK law, payments to the surrogate are limited to ‘reasonable’ expenses (which includes living expenses, medical bills and compensation for time off work), whereas some other countries do not restrict payment of expenses to those that are ‘reasonable’.

The conflict of these laws will cause more problems as surrogacy is increasingly international in nature.  Some key pointers for those considering surrogacy arrangements include:

  • Commissioning parents and surrogates considering entering a surrogacy agreement abroad must get legal advice in that state/country and the law of the UK.
  • Before the child is born, everyone involved in the surrogacy arrangement should make or update their wills in case one of them dies during the pregnancy or before a parental order is made.  This will help to ensure that those who are intended to inherit have the necessary rights, that the commissioning parents are recognised as parents if the surrogate mother dies and also protects the surrogate mother and her family.  Commissioning parents may also want to consider whether to take out life insurance for the surrogate mother’s family in the event that the pregnancy causes her death.
  • The surrogate mother is the child’s legal mother until a parental order is made or the child is adopted.  Until that time the commissioning mother does not have parental responsibility so cannot give consent to important matters such as medical treatment, education or healthcare.  The status of the father depends on the surrogate’s relationship status.
  • Commissioning parents should apply for a parental order within six months (a non-extendable time limit) from the date of birth of the child.
  • A parental order can only be granted to a commissioning couple if one or both of them are domiciled in the UK, the Channel Islands or the Isle of Man.
  • The surrogate must have freely and unconditionally consented to the making of a parental order.
  • Commissioning parents can benefit from maternity/paternity leave once a parental order is in place. It would be a good idea for the commissioning parents to discuss the situation with their employers to try to negotiate an arrangement that will allow them to care for their newborn baby without jeopardising their jobs.

The differences in international laws serve to make this area a legal minefield.  If you are considering surrogacy it is imperative that you take specialist legal advice before doing so.

Joanna is a solicitor based in Stowe Family Law’s London office. She acts in private law children matters including those involving residence and contact disputes and international surrogacy.  Her clients are from the UK and abroad, including the US, Switzerland and Dubai.

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