Modern families and relationships are changing. The traditional nuclear family is no longer the norm and the ways in which people are having families have evolved considerably over the years. Women are seeking to have children at a later stage in their lives, same sex couples are seeking to have genetic children and single men are wishing to become fathers without having a relationship. Media interest has meant that surrogacy has become headline news, due to celebrities such as Elton John and Sarah Jessica Parker openly admitting to using surrogates.
The changes in the way families can have children and the advances in fertilisation techniques have meant that surrogacy is now considered more frequently by couples wishing to start a family.
Surrogacy is legal in England and Wales but there are strict rules that surround it. However, commercial surrogacy is not legal and anyone who is seen as paying for surrogacy arrangements is committing a criminal offence. The mismatch between the expectations of the conceiving couple and their surrogate during the course of their ‘arrangement’ are one of the biggest reasons why these end up in court. It is therefore crucial that the parties discuss the arrangement and reach an agreement which sets out exactly what the parties' roles and expectations are before during and after the pregnancy.
While any agreement reached should be put down in writing to ensure that everyone is clear on the terms, surrogacy arrangement agreements are not enforceable in English law. However, putting together an agreement would show the parties intentions and help the court in the event that any disagreements arise after the child is born.
It is a criminal offence to pay someone to put together a surrogacy agreement for you. That includes a solicitor. Any agreement that is drafted for monetary reward is automatically in breach of the Surrogacy Arrangements Act.
If you are considering entering into a surrogacy arrangement, you will need to consider the options carefully and seek guidance from one of the surrogacy arrangement charities, such as Surrogacy UK or COTS. Advice and guidance can also be sought from regulated surrogacy clinics.
It is possible to involve a solicitor in the steps you need to take after the child is born. A parental order needs to be applied for within six months of the child's birth, but this cannot be done within the first six weeks. There is a strict and set procedure which must be complied with to ensure that the child’s parentage is correctly recorded.
Parties may have issues in reaching a final agreement between themselves and struggle to see how to go forward. In this situation mediation may assist. The mediator is there to assist in facilitating the reaching of an agreement and may be able to help reach a conclusion.