Rachael Shearmur
Posted on 20 Jul 2018

Surrogacy Part 1 - Preparation, conception and pregnancy

It is another sign of the way in which medical science has advanced, that the birth of a child to a surrogate mother, having at one stage not so long ago seemed unimaginable, has now, generally, become socially acceptable. Of course, not everyone agrees with the development and some find it undesirable for a number of different reasons. Nevertheless, it has been part of our law for 35 years and for those who are unable to conceive a child, it is a possibility which is welcome.

What defines surrogacy when used in connection with the birth of a child?

Surrogacy is the practice by which a woman (called a surrogate mother) becomes pregnant and gives birth in order to give the baby to someone who cannot have children.

How is surrogacy arranged?

A woman, man, or a couple (whether of the same sex or opposite sexes) can arrange for another woman to conceive, carry and give birth to a child of whom at least one of the intended parent(s) is not the natural parent. In England and Wales surrogacy is legal.

Finding an appropriate surrogate mother is an important decision. Given that there is a huge element of trust involved in the process, the proposed surrogate should be someone that the proposed parent(s) believe that they can rely upon.

The choice of a surrogate mother can be a private one or a specialist not-for profit organisation can be used. Whilst such an organisation can charge for its expenses, it is illegal for it to make a commercial profit through its activities in finding a surrogate mother and arranging the surrogacy. Similarly, the surrogate mother cannot charge for her surrogacy “services”, but she can be paid for her out of pocket expenses in conceiving, carrying and giving birth to the baby.

What is a Surrogacy agreement?

It is normal and advisable for the intended parent(s) and the surrogate mother to sign a surrogacy agreement. This can be prepared informally between the parties: however, as the document is likely to set out very important and sometimes sensitive arrangements which have been discussed and agreed - accuracy and precision is vital. Consideration should be given to taking and acting on legal advice on this document to which either party may wish to refer to in the unfortunate event that a disagreement arises.

There are many issues which can be included in such a surrogacy agreement , including:

  • the timing of the conception of the baby and how, where and at whose expenses this is to be implemented
  • the extent to which there will be contact (if at all) between the surrogate mother and the intended parent(s) during the pregnancy
  • the information which must be supplied by the surrogate mother to the intended parent(s) during the pregnancy e.g. over health issues relating to the surrogate mother and/or the child; discussions which should take place in the event that the surrogate mother receives medical advice to terminate the pregnancy on medical grounds; whether the surrogate mother should consult the intended parent(s) of an intention to terminate the pregnancy for any other reasons
  • the expenses of the surrogate mother to be covered by the intended parent(s)
  • arrangements for the birth of the child such as where and whether the intended parent(s) can be present at the birth
  • when the baby is to be handed over to the intended parent(s)
  • the naming of the intended child
  • arrangements for contact (if any) by the surrogate after the baby goes to the intended parents

It is emphasised that surrogacy agreements are not enforceable in the event that there is a disagreement between the surrogate mother and the intended parent(s) but the agreement will be taken into account if that agreement has to go to court and will be very strong evidence of what the parties intended.

The making of decisions about the baby will be take account of the welfare needs of the child.

How does the surrogacy take place?

There are two different types of medical procedures to create the conception of the child in the surrogate mother.

  • Traditional surrogacy:
  • In this procedure, the egg of the surrogate mother is fertilised with the intended father’s sperm.
  • Gestational surrogacy

The surrogate mother carries the intended parent’s genetic child conceived through in vitro fertilisation process (IVF) for which specialist doctors are needed. During the IVF, the egg from the surrogate mother is removed from her ovaries and fertilised in a laboratory. The embryo is then planted in the womb of the surrogate mother to develop. In this procedure, the sperm is usually (but not always) from a donor not identified to the surrogate mother or the intended parents.

In part 2, consideration will be given to the legal position at the birth and the legal steps that can be taken in the early months in order to secure the position of the child and the intended parents.

If you or anyone you know, are affected by the issues raised above and would like more information or some preliminary, confidential advice, please contact one of our experienced experts in our Family team by e-mail or telephone Exeter +44 (0)1392 688688 or Sidmouth +44 (0)1395 512515.