The surrogacy pathway: surrogacy and the legal process for intended parents and surrogates in England and Wales – GOV.UK

Starting the surrogacy processIntroduction

Surrogacy is increasingly becoming an option for starting a family for people who are unable to conceive a child themselves. This guidance is intended to give the reader key information about surrogacy and the relevant legal process in the UK.

The government supports surrogacy as part of the range of assisted conception options. Our view is that surrogacy is a pathway, starting with deciding which surrogacy organisation to work with, deciding which surrogate or intended parent(s) (IP(s)) to work with, reaching an agreement about how things will work, trying to get pregnant, supporting each other through pregnancy and then birth, applying for a parental order to transfer legal parenthood and then helping your child understand the circumstances of their birth. This guidance gives more information about each stage.

Decide if surrogacy is right for you

Decide which surrogacy organisation to work with

Choose a surrogate, IP(s) and egg or sperm donor

Get to know each other and agree a surrogacy arrangement

Conception (fertility clinic)

Maternity

Birth of child

Transfer of legal parenthood

Support child to understand the circumstance of birth

Surrogacy is when a woman carries a baby for someone who is unable to conceive or carry a child themselves.

This guidance document applies to England and Wales only. The legislation relating to surrogacy is UK-wide but there are different approaches to the court systems in Scotland and Northern Ireland.

Terms frequently used throughout this guidance:

These are couples or individuals who cannot have a child themselves and who are considering surrogacy as a way to become a parent. They may be heterosexual or same-sex couples in a marriage, civil partnership or living together/co-habiting, or individuals regardless of their relationship status. To apply for a parental order (which is the way that legal parenthood is transferred from the surrogate to the IPs), at least one of the IPs in a couple must be a genetic parent of the child born to them through surrogacy. An individual may also apply for a parental order to transfer legal parenthood as long as they are genetically related to the child. IP(s) generally prefer to be referred to as the parent(s) of the child.

There are many reasons why IP(s) turn to surrogacy. These include:

This is the preferred term for women who are willing to help IP(s) to create families by carrying children for them. A surrogate may or may not have a genetic relationship to the child that she carries for a couple. Surrogates generally do not prefer to be referred to as the mother or parent of the child.

There are many reasons why women decide to become surrogates. Some have experienced trouble conceiving themselves, some have seen friends or family struggle to have a family and some wish to support families.

Money should not be a motivation for surrogacy. Surrogates in the UK are expected to be paid no more than reasonable expenses. The family court will consider all payments to the surrogate as part of the IP(s) parental order application.

There are 2 different types of surrogacy arrangements:

Straight (also known as full or traditional) surrogacy is when the surrogate provides her own eggs to achieve the pregnancy. The intended father, in either a heterosexual or male same-sex relationship, or an individual, provides a sperm sample for conception through either self-insemination at home (there may be additional health and legal risks to carrying at self- insemination at home compared to treatment in a clinic) or artificial insemination with the help of a fertility clinic. If either the surrogate or intended father has fertility issues, then embryos may also be created in vitro and transferred into the uterus of the surrogate.

Host (also known as gestational) surrogacy is when the surrogate doesnt provide her own egg to achieve the pregnancy. In such pregnancies, embryos are created in vitro and transferred into the uterus of the surrogate using:

It is not generally recommended that those considering surrogacy do so independently. You may wish to consider joining one of the 4 main UK surrogacy organisations. If you do not use one of these organisations, you should consider the information in this guidance very carefully in order to minimise the risks of something going wrong with your surrogacy arrangement.

The 4 main UK surrogacy organisations are:

Surrogacy organisations can help surrogates find IP(s) and vice versa. Joining an organisation may also help you to reduce the risks associated with surrogacy. The organisations listed above perform various checks (including medical and Disclosure and Barring Service (DBS)) for all new members and aim to provide support throughout the surrogacy journey. Each organisation has its own set of processes to support the surrogacy pathway.

Before entering into a surrogacy arrangement you need to be aware of the legal position. Surrogacy is legal in the UK, although surrogacy arrangements are not enforceable in law. The Surrogacy Arrangements Act 1985 makes it clear that it is an offence to advertise that you are seeking a surrogate or are a potential surrogate looking for IP(s). It is also an offence under that Act to arrange or negotiate a surrogacy arrangement as a commercial enterprise, however, there are a number of non-profit organisations (also known as altruistic) listed above, that lawfully assist potential surrogates and IP(s) to navigate their surrogacy.

It is a criminal offence to advertise that you are looking for a surrogate or willing to act as a surrogate.

It is a criminal offence for third parties (that is, not the surrogate or IP(s)) to advertise that they facilitate surrogacy, although there are some exemptions for not-for-profit organisations.

It is a criminal offence for third parties to negotiate the terms of a surrogacy agreement for any payment (for example a solicitor cannot represent IP(s) or surrogates in agreeing the terms).

The surrogate (and, if she is married or in a civil partnership, her consenting spouse or civil partner) will be the legal parent(s) of the child at birth.

Following the birth, there is a legal process the parental order process to transfer legal parenthood from the surrogate to the IP(s).

In order to apply for a parental order and transfer legal parenthood, at least one of the IPs or the IP, in the case of an individual applicant, must be genetically related to the baby.

It is important that you can meet the conditions of a Parental order before you go ahead with a surrogacy arrangement (or if you do not, to take legal advice).

Surrogacy organisations are not-for-profit and can play a vital role in informing and supporting IP(s) and surrogates, as well as mitigating the risks involved in surrogacy.

While in practice these situations are extremely rare, there is a risk that a surrogate may change her mind about the IP(s) taking over the babys care after birth. There is also a risk that IP(s) may change their mind about becoming legal parent(s) of a child born through surrogacy. There is a risk that the relationship between the surrogate and IP(s) may run into difficulties or there may be a difference of opinion about an aspect of care. There are also risks around IP(s) and surrogates having different expectations of contact through the pathway.

It is therefore important that:

Some people enter surrogacy arrangements without the help of an organisation, for example those who are friends and family and those who wish to match independently. If you choose not to have the support of an organisation, you may wish to follow the process that an organisation would support you with.

There is further detail in What is a surrogacy agreement?

It is important that both IP(s) and surrogates feel they can cope with the emotional demands of a surrogacy relationship and fully understand the implications for themselves and for any existing children that the surrogate may have. It may be advisable for both you and your surrogate/IP(s) to see a fertility counsellor (which can usually be arranged through your chosen clinic or via an independent British Infertility Counselling Association counsellor) and to seek a medical opinion from your GP before starting on the surrogacy pathway. Surrogacy organisations also hold detailed information sessions that ensure that IP(s) and surrogates understand surrogacy and the risks and implications.

Surrogacy has financial implications, and it is important that IP(s) understand the kinds of costs that may be associated with surrogacy, including reasonable expenses for the surrogate and medical costs. A list of possible expenses is provided in Reasonable expenses.

It is advisable to agree an estimate of expenses in advance of surrogates and IP(s) getting to know each other properly. Surrogates should keep a record of any expenses incurred and any reimbursements made, which can be made available to the parental order reporter and the judge as part of the court hearing for a parental order.

An agreement between IP(s) and a surrogate (and her spouse or partner if she has one) is not a legally binding document but rather a statement of intention about how the arrangement will work and the commitment that each party is making to the other in advance of the surrogacy commencing. The main surrogacy organisations agree that it is fundamentally important to have a written agreement in order to ensure there is effective communication and mutual understanding between the IP(s) and surrogate.

It is advisable for the agreement to be discussed thoroughly in advance so all parties feel confident about all the details. If there are any parts in which there is not agreement, then the parties should consider whether further advice or help should be sought. Sources of advice and help may include, for example, clinicians, fertility counsellors, and non-profit agencies.

Once everyone is happy with the surrogacy agreement, it is usually written up and signed by everyone involved so that each party can keep their own copy. Remember to keep a copy safely. A written surrogacy agreement may provide a reference point if plans change as the journey progresses as well as providing a valuable tool to enable open and transparent discussion in relation to critical issues and decisions.

Each surrogacy arrangement is different and it is important to explore each part of your plan carefully. Key parts of a surrogacy agreement may include:

expenses and costs (how much will be paid, when it will be paid and how it will be paid it is also important to consider if payments will be staggered, and under what circumstances payments to the surrogate might be stopped, increased or decreased) including:

As part of the surrogacy agreement, it is sensible to set planned expenses out in as much detail as possible including details of how payments will be made, when they will start and when they will stop. This will help everyone budget appropriately and will help IP(s) keep a record of what has been paid.

When the intended parent(s) apply for their parental order, the family court will consider what has been paid to the surrogate. The court process will be as straightforward as possible if no more than reasonable expenses have been paid. While the law does not provide a definition of reasonable expenses, there have now been a significant number of parental orders made by the family court. Every case is different and what is reasonable in the particular circumstances of a case will depend on the specific circumstances. As a guide, the court has generally accepted as expenses:

It is generally accepted practice for the parties to a surrogacy agreement to estimate their expenses at the start, so that an agreed sum for expenses can be clearly recorded in their agreement and the payments can be spread over the course of the pregnancy if required.

As part of the IP(s) court application for a parental order, they will need to disclose precisely how much was paid to the surrogate and what it was for. If the court thinks that the IP(s) have paid more than reasonable expenses then it will need to decide whether to authorise the additional payments retrospectively to make a parental order. In doing so, the courts paramount consideration will be the childs welfare. If you have any concerns you may wish to consider whether to seek legal advice.

If conception is taking place at a fertility clinic (either with a host or straight surrogacy), there will be a cost. The costs are likely to increase significantly if multiple attempts at fertility treatment are required. If you are using an egg or sperm donor, there will be additional costs to pay, including their expenses if the donor is someone known to you (a friend or family member)

It is sensible to consider whether to put a will in place or update an existing will. A will may be a valuable tool to protect the child in the event of the intended parent(s) or the surrogates death, by appointing appropriate guardians or clarifying the intentions of the deceased in relation to any inheritance.

As with any pregnancy, a surrogate pregnancy carries some risk and so having life insurance in place for the surrogate may be advisable. This may be covered by an existing policy, but if not you may wish to take out additional insurance.

If you are working with one of the non-profit organisations it is important to budget for their fees/membership costs. These will vary according to the organisation.

The court fee for your parental order application is 215, as at November 2017. You may also wish to budget for legal advice and/or legal representation. This is not mandatory, but both the UK regulator (the Human Fertilisation and Embryology Authority (HFEA)) and the family court recommend legal advice for anyone embarking on a surrogacy arrangement, and some UK clinics require that legal advice is sought at the outset. Many parents represent themselves in parental order applications, particularly in straightforward UK surrogacy cases. Legal costs can vary from a few hundred pounds upwards depending on the level of advice and support that you would like.

The trying to conceive (TTC) stage can be difficult for everyone. All parties will have high hopes and expectations, but it is important to understand that several attempts may be required to achieve a pregnancy.

It is difficult to give success rates for surrogacy as there are so many relevant factors, including:

The age of the woman who provides the egg is the most important factor that affects chances of pregnancy. In 2013 to 2014, pregnancy rate per embryo transfer for women of all ages was 26.5%, but for women aged between 40 and 42 this was 13.7%.

The aim of treatment should be to have a single healthy baby, as twins or more carry additional risks for mothers and babies. Therefore if 2 embryos are replaced in any cycle of treatment, the surrogate and IP(s) should discuss the implications before the embryo transfer.

It is essential that all parties have support during treatment, as this can be a stressful time. Many surrogates and IP(s) will attend a counselling session (with their fertility clinic, if they are using one), which can help to identify how to best meet these needs.

Many surrogates and IP(s) choose to attend fertility clinic appointments together, where this geographically possible. If the IP(s) are unable to attend appointments, then the surrogate may wish to keep them fully informed about progress in line with their surrogacy agreement.

Many people find it helpful to have a plan for the day the pregnancy test is carried out, so that everyone feels they are giving and receiving the right level of support, particularly if the result is negative. A negative result will be disheartening for everyone and it is important that the IP(s) and surrogate recognise that they may each deal with the news differently and so have different requirements for support.

If more than one attempt to conceive is required, clinics may advise a different type of treatment. Parties often find that it is important that the surrogate and IP(s) are happy to discuss any decisions that need to be made openly and that they do so, so that everyone understands all the risks and potential outcomes before proceeding (or not proceeding).

IP(s) and surrogates should seek emotional support from a fertility counsellor, particularly if the process of achieving a pregnancy is prolonged, to explore coping strategies in order to minimise the risk of treatment and its aftermath having a negative impact on the other areas of the IP(s) and surrogates lives.

There are many Human Fertilisation and Embryology Authority (HFEA) licensed fertility clinics in the UK that can provide the assisted conception necessary for your surrogacy arrangement. You may wish to take account of the following points when choosing the right clinic for you:

Have the IP(s) already been through treatment with a clinic, and/or do you already have frozen embryos stored in a particular clinic? NB: Most clinics can arrange to transport frozen embryos to another UK clinic, but may need permission to export them to a clinic abroad.

Do you need donor eggs or sperm, and does the clinic have a donor bank or a waiting list?

Does the clinic have experience of surrogacy arrangements, and what support is provided?

What are the success rates of the clinic (see the HFEA website)?

How close is the clinic to the surrogate (to minimise her travelling times and the disruption to her life)?

The HFEA have an online clinic finder tool where you can search for clinics in your area, refining this by the treatments that they offer.

Cost this can vary widely between fertility clinics, it is important to ask the clinic for a cost breakdown before you commit to cost of an initial consultation.

It is important to remember that surrogacy takes time, patience and a lot of co-ordination and like standard IVF, may require several attempts before a successful pregnancy is achieved. IVF should always be looked at as a course of treatment rather than just one single cycle of treatment. Having this expectation from the outset can be invaluable. Clinics will talk you through the treatment and associated risks.

Host surrogacy is unique because this type of pregnancy can involve not just one woman, but 2 and, if fresh embryos are to be used, cycles may be synchronised to ensure the embryo is placed in the surrogates womb at the optimal time for their implantation. This type of treatment requires extra care and thought by health professionals managing surrogacy treatment in comparison with traditional IVF treatment because care needs to be co-ordinated between intended parents, surrogates and egg donors, if used.

In host surrogacy, embryos are created by using the IP(s) own sperm and/or eggs. If the intended mother is unable to use her own eggs, or if they are a same-sex male couple, donor eggs will be used. Clinics offer altruistic egg and sperm donors or egg donors who have participated in egg sharing schemes. IP(s) will have some choice about the physical characteristics of the donor. In the case of a same sex male couple, UK clinics can only use one of the IPs sperm sample per cycle.

Treatment can either be with fresh or frozen embryos. This means using embryos that have just been created by IVF and transferred immediately (fresh) or using embryos that have already been created in a previous IVF cycle but stored for later use (frozen). If the IP(s) have already stored embryos, a frozen embryo transfer cycle will be planned. If IP(s) are creating fresh embryos for transfer, the surrogate will need to take medication to synchronise her menstrual cycle with the cycle of the woman providing the eggs (whether this is the intended mother or an egg donor). In both cases, the surrogate will take some medication to support successful implantation and pregnancy.

Clinics will provide guidance on what treatment offers the best chance of success in your situation.

The law in the UK regards surrogacy as a form of embryo or gamete donation. The IP(s) undergoing surrogacy through a fertility clinic will therefore need to undertake various blood tests prior to attempting treatment, and they will be screened in line with requirements for egg and sperm donors. They will have a detailed medical consultation and will undergo genetic screening as well as testing for specific diseases such as Hepatitis B, Hepatitis C and HIV. Further testing for any other infectious diseases may also be performed if the IPs medical and/or recent travel history indicates there may be a risk.

An intended father will also need to have his sperm analysed in accordance with the HFEAs guidance. The sperm will then need to be quarantined and blood tests repeated following any quarantine period. The quarantine period is usually for 6 months, so IP(s) need to take this into account when planning treatment. Alternatively, it is possible to create embryos from fresh sperm and eggs and quarantine the actual embryos, again repeating the blood test after the quarantine period is complete.

The surrogate will usually have her initial consultation at which her medical and obstetric history will be taken as well as appropriate medical consideration of her suitability to be a surrogate. Her blood will be screened for infectious diseases and the surrogate will be given information regarding the treatment cycle and medication.

The surrogates partner (if she has one) is usually required to attend this initial appointment with the surrogate so he or she also understands the processes involved (and because if they are married or in a civil partnership he or she will be the legal parent of the child at birth). The surrogates partner will usually also be required to undertake blood testing for communicable diseases.

To give the embryos the best chance the surrogate may also be required to have a saline infusion sonogram scan (SIS), a specialist ultrasound scan, which checks for abnormalities inside the uterus or anything that may impact on the chances of a successful pregnancy. The clinic will be looking for any previous scar tissue, checking that the lining of her uterus is healthy and looking for any abnormalities to either the lining or the uterus itself such as benign uterine growths like polyps or fibroids.

Most clinics have a requirement that separately the surrogate, IP(s) and egg donor (if applicable) will all have participated in counselling prior to treatment. The counselling helps to ensure that all parties have fully explored the implications of having a child conceived through surrogacy and identified any particular support needs that may arise during the surrogacy arrangement and afterwards. Specialist fertility counselling is usually available from the clinic throughout the treatment, sometimes for an additional cost.

Some clinics may require that the IP(s) have taken legal advice in advance of treatment commencing to ensure there is understanding about the parental order application and the clinic may ask for a letter to confirm that this advice has been sought. Other clinics may want to see the surrogacy agreement to ensure the main decisions have been discussed and agreed.

Clinic forms are a key part of all fertility treatment and it is vital that these are completed and filled in properly. These forms are needed to record consent to the various aspects of fertility treatment and to make sure that intentions regarding embryo creation, use, storage and disposal are recorded. Where the surrogate is not married (or her spouse or civil partner does not consent to the treatment) the forms may also deal with who will be the childs legal parent(s) at birth. The clinic will guide you in the completion of the relevant forms and there is also guidance available from the HFEA.

The woman providing the eggs will take medication to stimulate her ovaries to produce a number of eggs. She will be monitored by ultrasound scan to check when the eggs are ready to be collected from the ovaries. The egg provider will then undergo a procedure to collect the eggs and on the same day as the egg collection, the eggs will be combined with the sperm through either IVF (eggs and sperm are put together in a dish to allow the sperm to fertilise the eggs) or Intracytoplasmic sperm injection (ICSI) (each egg is injected with a single sperm) depending on what the clinic recommends to provide the best chance of success.

The clinic will monitor the resulting embryos closely during the days following fertilisation to see which ones develop not all eggs will fertilise and not all embryos will develop. The remaining surviving embryos are graded and the most viable one or two are chosen for an initial transfer and any others of good quality are frozen for future use.

Embryo transfer into the surrogate will be performed on a specific day after fertilisation depending on the clinics protocols. Usually one single embryo is transferred but sometimes the clinic will agree to transfer 2 embryos where there are compelling reasons to do so. HFEA guidance for treatment involving donated eggs is for a maximum of 2 embryos to be transferred.

Usually both the surrogate (and her spouse or partner, if she has one) and the intended parent(s) will attend. Embryo transfer is a simple procedure, often likened to a cervical smear test and is performed by either a doctor or a nurse at the clinic. This is considered to be a relatively painless procedure and usually no sedation is necessary, but some people may experience a little discomfort.

The 2 weeks following embryo transfer is often the most anxious time of the whole treatment process. Clinics will advise on when to conduct a pregnancy test. The test is usually carried out around 14 days following embryo transfer to ensure the most accurate results.

The surrogate should continue taking medication until the pregnancy test date.

If the home test is positive, most clinics may want to confirm this with a blood test. The clinic will then usually organise a scan a few weeks later to check if the pregnancy is continuing and confirm either a singleton or multiple pregnancy. After this scan the surrogate will be referred to an obstetrician.

If the transfer is unsuccessful, the surrogate will be usually advised to stop all medication related to the surrogacy and she may experience a heavier than normal period. If everyone agrees to try another transfer, most clinics suggest waiting 2 menstrual cycles after the failed round before trying again.

Whatever the outcome, you can expect the clinic to provide the maximum support, advice and expertise to everyone involved. Everyone should be offered counselling and should be encouraged to take this extra support if it is needed.

Further information on fertility treatments is available on the HFEA website.

A traditional or straight surrogate is a surrogate who conceives using her own eggs via artificial insemination. This can be carried out at a fertility clinic or at home. If you go to a clinic, the insemination procedure will be optimised to give you the best chance of success. The surrogate will usually take medication to stimulate her ovaries a little. The growth of one or two egg follicles will be monitored by ultrasound scan and the insemination straight into the uterus will take place on the optimum day. The semen sample is analysed and prepared in the laboratory on the day of the insemination. Stored sperm can be thawed out on the day of insemination, if its not possible to provide a fresh sample, then the procedure will follow the above outline without the IVF stages.

If you are arranging a home insemination, then the first step would be to go to your GP who can give you advice on the best way forward.

It is important that you are clear and consistent with hospital staff about your arrangements and how you would like to be referred to. For example, be prepared to introduce yourselves and explain the situation regularly, as you may encounter lots of different staff along the way.

You should be on time (or even early) for your appointments as you may need to allow extra time to explain your circumstances.

Continued here:
The surrogacy pathway: surrogacy and the legal process for intended parents and surrogates in England and Wales - GOV.UK

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