National Surrogacy Week runs from 1st-7th August 2024, and aims to draw attention surrogacy as a route to parenthood, identifying the joys and the stresses of the process.
Surrogacy also is deeply interlinked with family law, and we have specialist lawyers here at Stowe Family Law who have expertise in the legal processes involved in surrogacy arrangements. Surrogacy can be a complicated arrangement, which is why it is important to seek legal advice at every stage of the process.
The law currently states that the woman who gives birth to a child is the child’s legal parent. In the case of surrogacy, this means that the parents who will care for and raise the child, need to transfer legal parenthood after the baby is born. This is a lengthy process and requires a parental order to be granted by the court.
Alongside the emotional and practical sides of the surrogacy journey, many prospective parents will have other concerns. There is a level of misinformation around the legality of surrogacy in England and Wales.
Stowe Family Law Associate Tamara Adams investigates whether it is legal to pay a surrogate in the UK.
Is it legal to pay a surrogate?
This is a question which many intended parents (IP) ask, as the legal position is that the UK law prohibits any commercial transactions or agreements with your surrogate during or after you have entered into a surrogacy agreement. Instead, the law allows an ultrastrict approach and with this in mind the surrogate should not be left out of pocket and for this reason, it is perfectly legal for IP to pay for all “reasonable” expenses which are incurred by the surrogate.
So, what is classed as a “reasonable expense”?
Generally, the concept is generously interpreted and includes most possible expenses that could be incurred by the surrogate relating to her pregnancy. This includes travel costs to visit you, attending and treatment at the fertility clinic or hospital, of earnings if the surrogate maternity clothing and post birth clothing, insurance, food supplements, dental treatment and if she requires childcare for her own children whilst attending appointments, these fees can be paid for by the IP.
“Reasonable” expenses can also cover physical or psychological therapy if they are related to the pregnancy, the cost of a will being drafted for the surrogate and even a relaxing holiday.
All in all, if it’s related to the pregnancy, then it will usually fall to be a reasonable expense. It is advisable to include in your surrogacy agreement what you expect these expenses to include and where possible a budget for them. These expenses will then need to be set out when you make the application for your Parental Order, shown in your agreement if you have one as the Court must then approve them. Therefore, it is important to keep all receipts and invoices to show what reasonable expenses have been incurred.
Although the Law Commission has prepared a report and bill to update the Surrogacy laws to create a new pre-conception pathway currently there is no update from the Government as to when or if this will be taken forward and in any event the proposals set out a continuation of an altruistic approach and continued ban on “for profit” arrangements.
If you are an IP and seeking further advice ahead of your surrogacy journey, please feel free to get in touch.
Useful Links
International surrogacy – what you need to know: https://www.stowefamilylaw.co.uk/blog/2022/11/04/international-surrogacy-what-you-need-to-know/