The biological imperative to procreate led scientists to develop IVF (in-vitro fertilisation) in the ‘70s. As with all paradigm shifts, IVF endured criticism and prohibition before becoming mainstream. It failed short of addressing the needs of the older or medically unable to carry a baby, however – just as it failed to provide a solution to same sex male partners.
Enlisting a willing woman to carry a baby is an increasingly appealing option to those unable or unwilling to do it themselves but is fraught with legal pitfalls – as well as potentially costly. Most prospective parents considering surrogacy head for the US because, quite simply, contracts are copper-bottom and the practice well-regulated, as well as fairly commonplace.
Popularised by the likes of the late Michael Jackson and later by Elton John and David Furnish, it barely elicits a reaction today, when reported in relation to Kim Kardashian and Natalie Massenet.
Andrew Spearman, an award-winning surrogacy lawyer and director of A City Law Firm, has penned an article focusing on one category of surrogacy users, the aging career couples.
Considering the increasing popularity of the practice, we expect to see a rise of surrogate pregnancies across the spectrum, but especially among the high net worth segment of society. With surrogate pregnancies costing anything between £35 – £120K, this places it firmly in the realm of the rather wealthy.
Life Goes On: Legal Implications of Surrogacy
The much beloved media term ‘millennial’ also aptly describes a current generation of men and women wanting to establish their own stability and security before sharing that with a partner. The point though (all too well known by older couples) is that their body is not necessarily keeping pace with that same social change when it comes to having children. I use the term ‘older’ loosely because, let’s face it, no one wishes to be considered old and it’s a matter of perspective, but from a fertility point of view lets agree to disagree on 35+.
I have seen infertility affecting couples of every age and background, happening without any discernible sense of fairness nor discrimination in gender. As life marches on and other priorities are… well, prioritised, couples are increasingly turning their gaze towards surrogacy as a viable alternative to have their family later in life.
The law in England in relation to surrogacy can be rather opaque, lacking the absolute certainty that most couples want to hear when planning to have a child. British surrogates are fantastic, generous women but many British couples are going abroad to jurisdictions which provide greater confidence. The obvious example is the US, where intended parents can be named on the birth certificate as the legal parents immediately or even have pre-birth orders to declare parentage even before birth though be mindful that not every state in the US gives this opportunity.
Here are a few top tips to be mindful about if you are looking for a surrogate abroad:
- Find a good lawyer in the local jurisdiction – they’re the only ones who represent just your interests and guide you on good practice.
- Get your foreign lawyer to thoroughly review the surrogacy agreement which will regulate the payments; it will form a corner piece to your UK Parental Order application.
- There are lots of online pages giving positive and negative reviews of agencies and clinics, but nothing substitutes first hand recommendations.
- Join online forums and attend events hosted by professionals working in the field. You get to meet people will help you and other couples who can share their experience.
- There is no upper or lower threshold for ‘reasonable expenses’, so do not just follow advice about quantum blindly.
- Scrutinise each so you can justify them to the court.
- Compensation payments are widely known to happen in the US, so do not tried to hide it when you return to the UK courts.
- Ensure that your relationship with your surrogate is as strong as possible and that she is entering it for the right reasons.
- You fundamentally need her cooperation long after birth too.
- A surrogate with poor credit history or large debts is vulnerable and could also give you false addresses for service of future documents required for the English court.
- Make sure you understand the immigration rules and requirements for returning to the UK with your child. Preparation is key.
- While you must comply with local laws, remember that when you return to the UK you must still apply for a Parental Order to become the legally recognised parents of your child.
Surrogacy can be a long and expensive process, but intended parents travelling abroad remark to me how the structure and support for surrogates leads to the process being smoother and faster than in the UK. It is now a well-trodden path and a viable route to parenthood for ‘older’ couples.