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:
- Agree an estimate of expenses in advance.
- Set planned expenses out in as much detail as possible.
- Agree details of how payments will be made.
- Keep a record of any expenses incurred and any reimbursements made.
The above should all be recorded in writing as opposed to just having a verbal agreement.
Reasonable expenses in surrogacy
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.
- The surrogate’s loss of earnings.
- The surrogate’s partner/spouse’s loss of earnings.
- Additional childcare to support pregnancy and clinic/antenatal visits.
- Help with additional cleaning to support pregnancy.
- Additional food and other supplements.
- Additional classes or therapies to support pregnancy.
- Travel and accommodation before, during and after pregnancy.
- Maternity clothes.
- Incidental treatment related to the pregnancy.
- Treatment costs if conception is taking place at a fertility clinic.
- Legal costs of making a Will to protect the child in the event of the death of the intended parents or surrogate.
- Life insurance for the surrogate to protect her family in the event of death.
- Non-profit organisation or agency membership fees.
- Legal costs for obtaining the parental order. The court fee for a parental order application is currently £215. You may also wish to budget for legal advice and/or legal representation.
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:
- the surrogate is married/in a civil partnership at the time of conception, in which case the other legal parent will be the surrogate’s husband/civil partner (unless it is proved to the satisfaction of the court that the husband/civil partner of the surrogate mother did not consent to the insemination) or;
- if conception takes place at a fertility clinic and someone else has been nominated as the second legal parent.
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:
Are you thinking about surrogacy and want to understand the legal issues?
Contact Gemma Hope