Surrogacy has become an increasingly viable option for individuals and couples who wish to have children but face challenges conceiving naturally. This method, which involves a woman carrying a pregnancy for intended parents, often intersects with complex legal, medical and ethical considerations. In this article we will explore the fundamentals of surrogacy, including the process, reasons behind turning to surrogacy, types of surrogacy, legal considerations and the implications for LGBTQIA+ individuals and couples.
What is Surrogacy?
Surrogacy is an arrangement that involves a woman (the “surrogate”) carrying and giving birth to a child for another individual or couple (the “intended parents”), providing a path to parenthood for those who would otherwise be unable to walk it. Often part of the process, In Vitro Fertilisation (IVF) is the fertilisation of an egg outside of the body, which is then implanted into the surrogate’s womb. Once born, it is the intention that the intended parent/s will then assume legal and parental responsibilities for the child.
Why Intended Parents Turn to Surrogacy
There are various reasons why intended parents may choose surrogacy. These reasons include:
- Infertility – Surrogacy provides an alternative route when traditional conception fails as a result of infertility.
- Medical Risks – Pregnancy may be unfeasible for an intended mother due to medical abnormalities and other severe health risks.
- LGBTQIA+ Couples – For same-sex couples, particularly homosexual men, surrogacy is a viable option to have a genetically related child (homosexual woman more commonly use a sperm donor rather than a surrogate for this reason).
- Single Individuals – It may be the case that single individuals want to become parents without a partner, to which surrogacy is an option.
- Genetic Conditions – Certain intended parents may feel restricted by genetic disorders that they possess and could transmit to a child.
Types of Surrogacy
Surrogacy can be classified into two main types:
- Straight Surrogacy (Traditional Surrogacy): The surrogate uses her own egg, making her the biological mother of the child. Although being employed first as the alternate name suggests, straight surrogacy is less common, being associated with a number of concerns. Because the surrogate is the biological mother, there are more legal complexities to overcome, and breaching of surrogacy agreements are more commonplace due to attachment.
- Host Surrogacy (Gestational Surrogacy): The surrogate carries an embryo created via IVF, with the egg and sperm coming from the intended parents or donors. The surrogate has no genetic link to the child, meaning less complexities both legally and emotionally speaking. As a result, this is the preferred method of surrogacy.
Surrogacy Agreements
In the UK, surrogacy agreements aren’t enforceable as they aren’t legally valid. However, intended parents and surrogates still form surrogacy agreements to set clear expectations and responsibilities and therefore play a critical role. To ensure compensation for the surrogate, expense coverage should be included. There should also be plans for prenatal care and medical interventions, arrangements for the birth and the level of involvement of the intended parents during both the pregnancy and the birth. Finally, there should be reference to the care and transfer of the child to the intended parents.
Parental Orders
At birth, the surrogate is the legal mother, and if she is married, her spouse is the legal father/second parent. Intended parents must obtain a parental order to transfer legal parenthood. The intended parents must be over 18, and at least one must be genetically related to the child. The application must then be sent within 6 months of the birth with the surrogate’s consent (given at least 6 weeks after the birth).
Surrogacy Wills
Although having a well-drafted Will is always vital, it is particularly in the context of surrogacy. A Will can address such issues as designating guardianship in the event of the parents’ death, financial provisions for the child, as well as potential special wishes for the child’s upbringing. The importance of Wills following surrogacy is therefore similar as it is in the case of the birth/adoption of any child.
Special Considerations for LGBTQIA+ Individuals and Couples
There are certain aspects of surrogacy that require special considerations in regard to LGBTQIA+ individuals and couples. For example, the non-biological parent in a same-sex couple must apply for a parental order to receive legal recognition as a parent. Additionally, there is the potential for discrimination throughout the surrogacy process, as well as in the lives that follow. It may be necessary to address this in order to protect against it.
If you have any questions regarding surrogacy, or wish to create or update your Will, feel free to contact us here. We offer free 30-minute consultations in order to discuss your specific situation and needs.
