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Surrogacy is increasingly becoming an option for starting a family for people who are unable to conceive a child themselves, but what are the financial implications of surrogacy in the UK?
When the intended parents apply for a parental order as a result of a surrogacy arrangement, the family court must be satisfied that no money or other benefit has been given or received (although the payment of reasonable expenses in connection with bearing a child is permitted).
The family court will consider what has been paid to the surrogate. The court process will be more straightforward if any payments made are clearly set out, recorded in writing and only include reasonable expenses.
It is advisable therefore to:
The above should all be recorded in writing as opposed to just having a verbal agreement.
What are ‘reasonable expenses’? There isn’t a legal definition. The list set out below is a general guide as to the type of reasonable expenses that could be incurred. Every case is different and what is reasonable in the particular circumstances of a case will depend on the specific circumstances.
Following the birth of the child through surrogacy, if a parental order is made the intended parents will become the legal parents of the child and therefore have financial responsibility for the child going forwards. See our separate blog post covering what is a parental order.
If a parental order is not put in place this can have unforeseen financial consequences for those involved in the conception of the child, as whoever is legally defined as the child’s parents will have financial responsibility for the child.
In the absence of a parental order the surrogate will be legally regarded as the child’s parent and therefore could be liable to pay child maintenance to the intended parents of the child if the child is living with the intended parents.
The other legal parent where there is no paternal order in place (who may also find themselves financially responsible for the child if the child is not living with them) will be the genetic father unless either:
Let’s take a look at a practical example:
Jane and John ask Jessica, who is single, to be their surrogate. Jane’s egg is fertilised by John’s sperm and implanted in Jessica. The baby is born. At birth Jessica is the baby’s mother (even though the child is genetically Jane’s) and John is the baby’s father. If a parental order is made Jane and John will become the baby’s legal parents and be financially responsible for the baby. If the baby lives with Jane and John as intended but no court order is put in place to legalise the intended parenthood Jessica and John will remain the baby’s legal parents and Jessica could be financially liable to pay child maintenance for the baby.
Aside from financial implications there can be many other long-term consequences of not getting a parental order in place as the legal relationship between children born as a result of surrogacy arrangements and their intended parents is not on a secure legal footing.
For information about parental orders see surrogacy and family law part one and part two.
If you are considering surrogacy it is recommend that you join one of the three main UK surrogacy organisations for help, support and guidance: