Top surrogacy mistakes and how to avoid them

When starting your surrogacy journey, it can be over-whelming and confusing sifting through all the literature on the internet and hard to know where to start. But with it being a life-changing experience it’s important you choose wisely.

Whether that’s where to arrange this and who you have in your boat to support you, all these choices are fundamental. 

Having well over a decade experience in this field we have witnessed many journeys smooth and otherwise. We understand the worries and issues intended parents (IP’s) go through and how to minimise these to make the surrogacy journey as plain sailing as possible. We’ve put together a list of top mistakes UK IP’s make during surrogacy so you can avoid them…

Karen Holden – CEO A City Law Firm

Choosing the wrong country

Often, the starting point is to consider whether to arrange your surrogacy journey in the UK or overseas. Whilst we appreciate this is largely influenced by the costs, we do need to highlight that some countries whilst closer for flights or are cheaper are not without risks. 

Staying in the UK is convenient and less expensive, but it is important to note that surrogacy agreements in the UK are not legally binding. Setting out the entire arrangement in writing at the onset though is still essential, as agreements can assist later in court to confirm everyone’s intentions should matters not go as planned.

The USA, as an example, is chosen due to readily available surrogates, rigorous screening and the fact that contracts are legally binding in some states. This gives you a proven and transparent system offering you security with the process. However, in the USA you can pay compensation for surrogacy services, so you need to be careful to take advice as you cannot pay anything more than ‘reasonable expenses’ in the UK. When you return for your parental order, this needs to be confirmed and identified in your application for a Parental Order. Careful consideration and planning though can overcome this hurdle, it can slightly delay matters and create the need for a second hearing so there may be cost consequences, but preparation early on can minimise this.

In other countries that promote surrogacy, it may be illegal for LGBTQ+ parents, or they may not recognise single parents, or they may have additional loopholes you need to be aware of and are new to this sector so don’t quite have the proven record others do. Professional advisors in that jurisdiction are even more essential. 

Medical care / Insurance   

Do not forget to do your homework on when you will become responsible for your baby’s medical care/insurance/treatment costs. This varies country to country and even province or state to state. If your child needs to stay in hospital, it is not just the costs and who pays/who is covered, but also who has parental rights to consent to medical treatment. Canada has many synergies with the UK and medical treatment was never an issue, but in some provinces this has now changed. Hospitals are now billing for newborn medical costs and as we hear some IPs are now receiving medical bills, which have not been paid. As a result, hospitals are more careful and local lawyers are refusing to do follow up for birth certificates if hospital bills are not paid.

Post birth signatures needed

To obtain a parental order in the UK your surrogate needs to sign the consent form to relinquish parental rights between 6 weeks post birth and 6 months and if the surrogate is married their spouse must also sign this. Vetting / screening and binding contracts takes out the uncertainty of this process and liaising with UK and overseas lawyers to prepare for this can often ensure this is a simple admin excise. However, issues have arisen where surrogates have separated, or UK surrogates have refused to sign this form. These issues can potentially be addressed by an adoption order, mediation or only some aspects of parental responsibility being applied by the court. However, to avoid the stress of this we recommend robust vetting and references hence why choosing a clinic, agent and surrogate with a proven track history and references can be vital.

Professional advice

We often hear that non-legal parties in the arrangement have told IP’s there is no real need for a parental order or immigration advice. It is essential that IP’s do their own homework and speak to a solicitor in the UK directly as a parental order is required wherever a baby is born through a surrogacy arrangement to transfer legal parenthood. If you are returning to the UK and immigration isn’t as straight forward as it sounds, and we have heard of many horror stories of parents turned back around at UK airports for not having the correct documentation. It can be a swift and reasonably inexpensive process to have a consultation and immigration review, so we advise parents not to risk it. Having the right experienced people on board before you embark on this journey helps you be prepared, get everything right and in place early, saves you delays, money and ultimately if anything goes wrong it can be resolved. Choose wisely and ask all the right questions. Ask them what experience they have, read their testimonials, ask about their fees so it’s all transparent and agreed up front. Ultimately, we are here to help and support you so make sure that trust and understanding is there for you.

Communication directly with your surrogate 

Most often outside of the UK an intermediary will find the surrogate and vet them for the process, which is strongly supported. However, we also encourage IPs to open and maintain lines of communication directly with the surrogate throughout the process. This avoids any miscommunications; helps for future involvement (if that is what you would like ie. a second or third child); and helps prevent any potential issues at a later stage as the friendship and connection has hopefully been forged. 

No matter where you decide to embark your surrogacy journey don’t cut corners. Do your preparation and make sure to seek legal advice prior to have the best chance of a smooth experience for all parties involved.

Case studies 

Medical difficulties 

Our client had a baby, by a surrogate overseas in Ukraine, who sadly needed extensive medical and hospital treatment. The intended mother’s husband left her during this period and single parent surrogacy was not allowed in this jurisdiction or the U.K. at that time. As such the mother had no legal right to bring the child home or consent to treatment, she also did not have medical insurance. After an extensive legal battle, the child was securely bought back to the UK with its mother and an adoption order granted to secure full parental rights. The medical costs and legal costs though was something that was unexpected and unplanned for. Read more about the case here: Surrogacy – What if it goes wrong? – A City Law Firm

UK Surrogate refused to sign parental order & wanted contact

Following birth, the surrogate wanted additional monies which was an issue regarding ‘reasonable expenses’ and additionally she wanted significant contact with the baby, which was not the original agreement or wish of the intended parents. There was even an agreement to evidence the parties’ intentions. This was a traumatic and distressing time for the parents involving the court, child services and could of cost them thousands. However, we successfully secured the baby in the home of the intended parents, and they were able to exercise their parental responsibility. Unreported as sealed by family court.

Separation before the baby was born

We have had intended parents separate during the surrogacy process, before the parental order was issued; at the time single surrogacy was not permitted. The non-biological parent would have lost all legal rights. Yet we argued the court should set a precedent by allowing the parental order application on the basis two homes between parents continued to qualify as it would when any parent separates. Read more about the K and L and N 2019 case here: https://www.bailii.org/ew/cases/EWFC/HCJ/2019/21.html

Intended parent denied leave for the birth of his child overseas 

The non-biological intended parent was told by his employers he was not entitled to any leave as he was not biologically connected to the child, who was born in Canada. Our client engaged us to address his employer’s clear discrimination, and whilst matters became complicated and proceeded to the Tribunal, ultimately, he was there for the birth of his baby and to bring her home, he kept his employment during this essential time, and compensation for the discrimination has been and is still being addressed.

No matter where you decide to embark on your surrogacy journey do your preparation and make sure to meet with your UK surrogacy solicitor. Allow them to liaise immediately with your lawyer in the jurisdiction that the surrogacy will take place. That way we can harmonise your process abroad so that you will have all the UK requirements in hand before you return with your baby. 

If you have any further queries feel free to contact the dedicated team at A City Law Firm