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Parents who have a child via surrogacy must obtain a Parental Order to end the surrogate’s parental rights (and those of her spouse or civil partner if she has one) and to ensure that they are recognised as the legal parents of their child.
Section 54 of The Human Fertilisation and Embryology Act 2008 sets out the conditions that must be met for the court to make a Parental Order. It is clear that intended parents may only pay the surrogate reasonable expenses and that any payments over and above these must be retrospectively authorised by the court. This is rooted in the ban on commercial surrogacy in the UK. Surrogacy must be altruistic, so surrogates cannot receive monetary compensation.
Unfortunately, the Act does not set out what type or level of payments will be considered by the court to fall under ‘reasonable expenses’. Previous legal cases also fail to give us a definitive answer as to the limit of what are considered reasonable expenses.
The court has taken a broad view of what constitutes reasonable expenses in surrogacy. Clearly, the impact of carrying a baby for someone else can be significant and the surrogate may be reimbursed for expenses such as:-
In the UK it is usual for intended parents and surrogates to agree a fixed sum for expenses, which is often in the area of £12,000-£18,000. Although the judiciary have been clear that there is no law which tells them what figure can or cannot be considered a ‘reasonable expense’, if you stick within this general bracket for domestic surrogacy you are unlikely to experience any problems.
Many UK intended parents decide to pursue commercial surrogacy arrangements abroad, particularly in the US, as it may be easier to find a surrogate. The cost of surrogacy abroad can vary significantly, but can range from $35,000 to over $100,000. Will the court find that these payments are ‘reasonable expenses’?
It is unlikely that a court will find the costs of commercial surrogacy to fall under the category of ‘reasonable expenses’. It is generally clear that these surrogates are receiving payment for their services, rather than receiving reimbursement for expenses such as loss of income, medical expenses and other costs. So, does this mean that the court will refuse to grant a parental order if you have used a commercial surrogate abroad?
No. If the sum that a surrogate has been paid is over and above that which is considered ‘reasonable expenses’ by the Judge, the payments can be retrospectively authorised by the court.
Again, the law is silent on what payments can and will be authorised by the court retrospectively and there is no clear guidance.
The reality is that by the time the case is before a Judge, the baby has been born and is living with the intended parents. In most cases, the Judge will actively want to regularise the family relationships and will do everything that they feel is within their power to authorise expenses and make a parental order.
If you do enter into a surrogacy arrangement abroad, make sure you use a reputable agency and that you keep clear records of all payments that have been made and what they relate to. It is important to be open and transparent from the outset. Our blog on international surrogacy is a helpful place to start as it details everything you need to know: https://www.familylawpartners.co.uk/blog/international-surrogacy-need-know/
If you are considering surrogacy it is recommend that you join one of the three main UK surrogacy organisations for help, support and guidance:
This blog was originally written by Lauren Guy. For a consultation with a member of our specialist family law team please get in touch.?