Those embarking on the path to having a child via the surrogacy route are often surprised that in the UK, unlike in many other countries, you cannot enter into an enforceable contract with your surrogate.
This is mainly due to fact that in the UK, surrogacy is an entirely altruistic endeavour. However, this often leaves intended parents and surrogates alike feeling unsure as to how best to proceed, or how to ensure the surrogacy runs smoothly.
Although a solicitor cannot draw up any agreement, as this is a criminal offence under The Surrogacy Arrangements Act, this does not prevent the surrogate, a spouse or partner, and the intended parent(s), from sitting down together to discuss their ‘deal breakers’ and drawing up a formal document, called a Surrogacy Agreement, outlining what has been agreed.
Surrogacy Agreements outline the issues raised during discussions, the specific terms of the shared agreement, and the chosen approach that all the parties will take – although the agreement is still not be enforceable should any party act in contravention of the terms.
When speaking with intended parents or surrogates I provide early advice on the process of surrogacy, confirm their legal position, and give guidance on making an application for a parental order – the process of becoming a legal parent of the child – which is required.
We recommend that you engage in these discussions with all parties, and consider all of implications, before the implantation of an embryo. Take the time, before starting the process, to sit down and have these difficult discussions. Whilst these can be a little awkward, it often helps to open the lines of communication and to build a good relationship between the parties.
What should be included in the agreement?
The agreement should include details of the parties’ positions, discussions and agreements reached such as;
- Decisions about the pregnancy
- Who will attend scans and appointments
- How you would deal with any difficult issues that arise, including medical issues (although of course the surrogate will always retain the right to make her own medical decisions)
- Arrangements about the birth and post birth
- Arrangements surrounding the application for the parental order
- Expenses and arrangements for payments
- Any other issues, or moral and ethical decisions you deem necessary to ensure you are all on the same page.
At present, intended parents may also need to consider whether they want their surrogate to have had a Covid vaccine or not and, if the surrogate is going to be vaccinated, whether or not she does this before the implantation of the embryo.
If the parties do not agree on this issue, then they should talk openly about their concerns and include this specifically in the surrogacy agreement. Even if an agreement cannot be reached, discussing the issue can help to understand the others position and can assist with deciding how you move forwards.
Why make an agreement if it is not enforceable?
This surrogacy agreement can be shared with any relevant third parties, such as clinics or hospitals, so that they can understand the situation without the need for you to clarify your circumstances and the details of what has been agreed.
Nobody knows what the future holds, but by formally recording your arrangements you have a definitive record of the agreement to refer to at a later date, should the need arise.
This helps to ensure everyone’s wishes, and the agreements reached, continue to be respected and provide reassurance should there be a breakdown in the relationship.
Although it is unlikely the surrogacy agreement will be able to cover every conceivable disagreement that might arise, it does offer peace of mind by helping you to reduce conflict around the most common issues.
Furthermore, it opens up the channels of communication, facilitating discussions, and helping all parties to see each other’s point of view. This collaborative approach will help you to reach agreements if other issues, that had not previously been considered, arise.
Ultimately, although unenforceable, discussions between the parties and the resultant surrogacy agreement are hugely beneficial, and important for all involved, to ensure everyone’s understanding and expectations are aligned.
Get in touch
If you are considering surrogacy and would like advice on this or other family law issues, please contact our Client Care Team to speak to one of our specialist surrogacy lawyers here.