Surrogacy guidance published for parents, surrogates and health professionals

The Department of Health and Social care has just published two very useful guidance notes for surrogates and intended parents.

The note identifies the financial considerations which both the intended parents and the surrogate need to bear in mind, both when entering into a surrogacy agreement and when making an application to court for a parental order.

As opposed to some other parts of the world which, with varying degrees of success, operate commercial surrogacy arrangements in the UK such arrangements can only be made on an ‘altruistic’ basis. The two most import consequences of this are that any surrogacy agreement is not legally binding and that intended parents can only make payments to the surrogate which qualify as “reasonable expenses”. This means that, technically, the surrogate cannot be paid a fee for her ‘services’.

In practice, however, where appropriate the court can and will retrospectively authorise additional expenses including any fees paid to a surrogate. As explained in the guidance note, this is because the court’s paramount consideration is the child’s welfare. If additional expenses need to be authorised in order to make a parental order then the statutory limitations will not apply.

The application for a parental order should be prepared very carefully and it is important to provide a detailed schedule of the sums expended during the surrogacy. In the absence of anything untoward or inappropriate in the financial dealings between the parties payments will normally be authorised.

The paperwork involved can be considerable and there is a tight deadline. An application should be issued within 6 months of birth. As legal proceedings are the last thing which any new parent would want to lose precious sleep over, we help clients to prepare the application before the birth of their baby. With the right preparation, the appearance before the Judge to obtain the parental order should prove to be a happy and stress free occasion with some unusual pictures to add to the family photo album.

This guide is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.