Surrogacy is a birth option that has become increasingly used by parents in England and Wales in the last decade. According to figures revealed in 2021, parental orders, which transfer legal parentage from the surrogate, almost quadrupled from 117 in 2011 to 413 in 2020.
The reasons why parents choose surrogacy can be deeply personal and complex. However, in every case, it’s crucial that all parties understand the implications of pursuing this means of having a baby.
There are legal considerations to be aware of and consent must be gained before anything can proceed. It’s advisable that all parties seek legal advice from family law solicitors before proceeding. Here, we look at the importance of consent and the legalities of having a baby via a surrogate.
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Why consent is important in surrogacy
Having a baby is a huge undertaking for anyone, both mentally and physically. To do so for another couple adds an extra layer of complexity because the surrogate must agree to carry the baby of their own free will and give their consent before the pregnancy can proceed.
As well as needing to consent on a personal level, legally, there is another reason why consent is significant. The surrogate mother automatically becomes the child’s legal mother when the child is born to them via surrogacy. Therefore, legal parentage needs to be transferred from the surrogate to the planned parents. To do this, the intended parents apply for a parental order.
In order to proceed, the court takes different factors into consideration and one of these is that the surrogate mother has given her free, informed, and unconditional consent for the parental order to be made. Should the surrogate not agree, the parental order can’t be made, and the intended parents cannot be made legal parents.
Surrogacy costs the parents
How much surrogacy costs depends on where parents go. The amount varies between surrogacy in the UK and US, for example, so this is something to take into consideration.
There are also legal implications with the amount that’s paid to a surrogate, depending on where the surrogacy takes place. For instance, in the UK you cannot legally pay a surrogate, but you can pay for their reasonable expenses.
For people looking to use a surrogate, being aware of the law around what money is paid and what it covers is essential before any funds are handed over.
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The significance of surrogacy agencies
While receiving money for arranging surrogacy from a third party is against the law, there is an exception for non-profit organisations. In reality, there are just a few skilled non-profit surrogacy businesses and organisations in the UK that assist intended parents and surrogates in finding one another.
The Human Fertilisation and Embryology Act 2008’s regulations regarding legal parentage apply, and the clinic is required to inform everyone involved that the surrogate will initially serve as the child’s legal mother and that the surrogate’s spouse will serve as the child’s second legal parent unless the spouse refuses to consent to the procedure.
In order for a surrogacy to proceed, it’s essential that the surrogate gives full and clear consent, in writing, in order for the process to begin. This ensures all parties are aware of the implications of who the parents are when the baby is born and that the surrogate is agreeing to go ahead.