How can I Protect Myself in a Surrogacy Arrangement?

Joe Ailion
Joe Ailion
Family Law Solicitor

Surrogacy has offered the option of being a parent to so many people who never expected they would be able to start a family of their own. It’s not surprising that people become so emotionally invested in the surrogacy process.

But, because surrogacy arrangements are not legally binding in England and Wales, it is also understandable if you feel vulnerable and as though you are pinning all your hopes on a surrogate.

Most surrogacy agreements are successful, but complications can come up so it’s important that you’re prepared to protect yourself should anything go wrong.

In England and Wales, your legal rights as ‘intended parents’ are limited. For example, the surrogate will be the child’s legal parent until this is transferred through a Parental Order.

If the surrogate is married or in a civil partnership, their spouse or civil partner will usually also be the second legal parent. In addition, often the intended parent(s) will not yet have parental responsibility when the child is born and this affects the ability to make decisions on behalf of the child, such as giving consent to certain medical treatment. 

There are things you can do, however, to reduce the risks involved. We’ll talk through some of these in more detail below. If you’d like initial advice, get in touch with our expert Family Team to find out more about how we can help you.

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Three Ways to Protect Yourself in a Surrogacy Arrangement

Use a Surrogacy Agreement

We know that the idea of starting the surrogacy process is daunting. It can feel like you’re taking a huge leap of faith with little control over the end result. But there are things you can do to put yourself in a less vulnerable position.

A Surrogacy Agreement can give you reassurance as it will outline how your arrangement with your surrogate will work at every stage of the process. It should consider any decisions or issues surrounding:

  • the conception;
  • pregnancy;
  • what should happen if things go wrong;
  • reasonable expenses;
  • the birth of your child;
  • the care your child will receive when they arrive, and the relationship the child will have with the surrogate in the future;
  • expectations as to the legal issues.

While a Surrogacy Agreement can’t be enforced by law, it will make sure that everyone is aware of what is expected of them right from the beginning of the process. By setting out what you would do in different scenarios relating to the four areas listed above, you can also reduce the risk of disputes further down the line.

Work with a Surrogacy Agency

In England and Wales, it’s illegal to advertise surrogacy, but altruistic organisations do exist that can help you with the process.

A surrogacy agency will encourage and support conversations between you and your surrogate at each stage of the process. They will also be aware of what should be discussed so you’re not caught off guard by any unexpected events further down the line.

Hopefully you won’t have any disputes with your chosen surrogate, but working with a surrogacy agency can give you the reassurance that they’ll be there to help you resolve any problems if and when they come up.       

Get to Know Your Surrogate

By building a relationship with your surrogate, you’ll have more of a foundation for important conversations around both parties’ expectations. There’ll also be a smaller chance of disagreements as you’ll both be aware of each other’s understanding of how the process will be managed.

What if There’s a Disagreement?

Even if you’ve done everything to protect yourself so far, you may still be worried about what might happen if you have a dispute with your surrogate later on in the process.

A lot of intended parents worry that the surrogate may decide they want to keep the baby. This is very rare as the majority of surrogates recognise early on that they are not the mother of the child. But in the unlikely event that a surrogate does change their mind, there is recourse to address this in the Family Court.

The Court will then decide what is in the child’s best interests. Our Family Lawyers can support you and represent you in Court should you find yourself in this situation. Get in touch with one of our team today for specialist legal advice that’s tailored to you.

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