Why UK solicitors cannot draft surrogacy agreements

Surrogacy is legal in the United Kingdom. However, UK law includes restrictions on surrogacy which were put in place in 1985 when surrogacy was in its infancy and the policy was not to encourage it as a form of family building. The current law affects how third parties can support surrogacy in the UK, and the effect of surrogacy agreements for those entering into them.

Surrogacy agreements are not legally enforceable in the UK

Surrogacy agreements are not legally enforceable in the UK. That means that if either the surrogate or the intended parents change their mind about the intended parents becoming responsible for the child at birth, the other cannot take them to court to enforce the contract. That is not quite the same thing as the surrogate having a ‘right’ to keep the baby.

In practice, if there is a dispute, either party can make an application to the family court to decide what the arrangements for the child should be, and a family court judge will decide what is best for the child. The court will take into account any agreement entered into between the parties, but the judge won’t be bound by it and can do whatever it thinks is right for the child.

Of the small handful of cases there have been where such disputes have arisen, all have been decided on the particular facts with care being transferred to the intended parents in some cases but not in others. Thankfully, UK surrogacy disputes are incredibly rare in practice, even though both intended parents and surrogates understandably worry about their surrogacy arrangement not being underpinned with legal certainty.

UK law makes a surrogacy agreement a statement of intention

In effect, UK law makes a surrogacy agreement a statement of intention rather than a legally binding document. Unlike surrogacy agreements in places like the USA and Canada which recognise the shared intention involved in a surrogacy arrangement to make the intended parents the legal parents, a UK surrogacy agreement also won’t dictate who the child’s legal parents are.

Upon the child’s birth, even if the embryo was created using the intended parents’ eggs and sperm, the surrogate (and her spouse) will be recognised as the legal parents at birth. The intended parents will need to make a parental order application to transfer legal parenthood to them.

In addition to surrogacy agreements not being legally enforceable or legally recognised, there are also restrictions which affect the process surrogacy teams go through to enter into a surrogacy arrangement. It is against the law for a third party, including a solicitor, to negotiate a surrogacy arrangement in exchange for payment.

Surrogacy teams need to put their own agreements in place, but there is support to help them do this

That is why UK solicitors – unlike lawyers in other jurisdictions where surrogacy takes place, like the USA and Canada – can’t get involved in writing surrogacy agreements or representing one party in the discussions relating to the arrangement. Surrogacy teams in effect need to put their own agreements in place, rather than having a lawyer help them make sure the wording is precise and complete.

There are, however, various source of support available. The UK’s non-profit surrogacy organisations can both introduce intended parents and surrogates, provide support and act as an intermediary between them while they are agreeing the terms of their surrogacy arrangement.

All the UK’s main surrogacy organisations provide their matched surrogacy teams with template surrogacy agreements to work through, and may also give other support and guidance to those putting agreements in place even if they connected elsewhere (see for example the Already Matched Pathway offered by Brilliant Beginnings).

Lawyers can give legal advice to provide general guidance and in particular to discuss how the parental order criteria are applied in practice in respect of the requirements around expenses and what UK surrogates can be paid . Counsellors can support surrogates and intended parents with working through the emotional issues and their expectations.

Finally there is general guidance available online as to the kinds of issues that should be discussed, including from the Department of Health and Social Care.

As solicitors, we can help you with a UK surrogacy arrangement

While surrogacy agreements are not either legally recognised or enforceable in the UK, they are nonetheless an important part of a UK surrogacy journey. Even though an agreement is not legally binding, putting things in writing helps create clarity and fosters good communication. It is always important to carefully discuss matters at the outset to help ensure that expectations are aligned and to establish strong foundations, and to gather as much information as possible before this is done, including legal advice. As solicitors, we can certainly help you with a UK surrogacy arrangement you are entering into – we just can’t draft the agreement itself.