Over 5 million people tuned in to watch the series finale of the recent BBC drama, “The Nest”. The series follows the life of a married couple who have longed for a baby and opt to have a child through surrogacy. The series highlights the struggles for those trying to conceive naturally and unable to do so. The plot ultimately questions how far people will go to have a baby, and in doing so, viewers are left trying to balance their morals and the legal position.
Surrogacy laws require that the child must be genetically related to, at least, one of the intended parents. There are three options for intended parents when it comes to surrogacy. Option 1, the intended parents use the surrogate mother’s egg and it is fertilised by the intended father. Option 2, the intended mother’s egg is used and it is fertilised by the intended father. The surrogate then carries this fertilised egg and has no genetic link to the child. Option 3, the intended parents use the intended mother’s egg and it is fertilised by a sperm donor or they use an egg donor and it is fertilised by the intended father, either fertilised egg is then carried by the surrogate.
In “The Nest”, Dan and Emily opt for Option 2. The couple ask Kaya to be their surrogate mother and carry their last fertilised egg from IVF. The couple offer Kaya the sum of £50,000 to be their surrogate and both parties enter into a surrogacy agreement which details the arrangements of the surrogacy.
At this point, most viewers will have become conflicted between morally what is correct and legally what is allowed. We have highlighted some “need to knows” in relation to surrogacy below.
Payment v “Reasonable Expenses”
In the UK, it is illegal to pay someone to be your surrogate. However, you are entitled to pay reasonable expenses to a surrogate mother. While “reasonable expenses” have not be defined by the court, it is advisable that couples look to agree an estimate of expenses in advance with the surrogate and this should be detailed in a surrogacy agreement. Practically, it is advisable to keep a list of expenses incurred by the surrogate to ensure that you are only paying for expenses incurred and are not paying the surrogate for being a surrogate.
It is important to remember that all surrogacy pregnancies are different. Therefore, each surrogacy will incur different expenses. The courts are keen to look at each individual surrogacy when considering reasonable expenses, and are clear that there is no set sum which will be deemed to be reasonable or unreasonable. A decision made by the court based upon “reasonable expenses” will be dependent upon the circumstances.
A surrogacy agreement is a useful tool for both parties, as it details the arrangements that the parties have agreed in relation to the surrogacy and what will happen after the child is born. Most maternity units will insist on a copy of the surrogacy agreement.
Such an agreement allows for the intended parents and the surrogate to consider serious issues and have “rules” agreed in relation to the pregnancy and the child. Surrogacy agreements force intended parents and surrogates to consider scenarios like if the baby was unwell and the pregnancy was not going as planned, what should happen? If the surrogate was unwell and it was advised that the pregnancy should be terminated, what should happen? Surrogacy agreements provide guidance, clarity and answers to difficult situations which the parties have discussed and agreed beforehand, should they arise during or after the pregnancy. The agreement should also detail the process for handing over the baby to the intended parents and outline what the parties believe should amount to reasonable expenses.
While surrogacy agreements are helpful to both parties, they are not legally enforceable in court. This means that either party can fail to follow the agreement and legally, there is no remedy for the aggrieved party.
The child’s legal parents
“The Nest” also highlighted the legal position regarding the child’s biological parents. By law, the surrogate mother is the child’s legal mother regardless of surrogacy option (detailed above) chosen. The legal position in relation to the child’s biological father is less straightforward. If your surrogate is married or in a civil partnership, their spouse or civil partner is the child’s second parent, unless they refuse to assume this role. If the surrogate is single and the intended father has fertilised the egg, the intended father is the child’s legal father. However, if a sperm donor is used, the donor is not the child’s legal father unless they donated through an unlicensed clinic or by informal means.
To become legal parents of the child, intended parents need to ask the court to grant a “parental order”. A parental order transfers parental responsibilities and rights from the surrogate (and any second parent) to the intended parents. Intended parents must meeting the following criteria, they must apply for this within six months of the child being born, the child must be living with them, both of them must be over the age of 18 and one of them must be genetically related to the child.
Where neither party is related to the child, as seen in the TV Show due to a mix up in the lab with the fertilised egg, intended parents need to make an application to the court to adopt the child as they do not meet the criteria set out above to make a parental order. The surrogate (and any second parent, depending on the circumstances) would need to agree to the adoption.
A surrogacy agreement should detail the proposed process for becoming the child’s legal parents and would confirm that the surrogate (and any second parent, depending on the circumstances) will agree and plan to renounce their parental rights.
How we can help
At Thorntons, our family law team understand that surrogacy laws are complicated and that it can be an overwhelming time of intended parents. We understand that it is important that intended parents receive the appropriate legal advice and understand the options available to them.