Guidance

Guide 1 for intended parent(s): planning for international surrogacy

Published 22 June 2022

This guide is intended to assist intended parent(s) to understand and plan for the process of undertaking an international surrogacy arrangement. Please note that the information in this guide has been simplified for ease of understanding, and some technicalities are not discussed in detail.

This information is correct at the time of publication. Its aim is to make intended parent(s) aware of issues that may arise, and to help them plan accordingly. However, it is not a substitute for professional or legal advice, which should be sought where appropriate.

Key considerations

Where intended parent(s) living in the United Kingdom undertake surrogacy in another country, they may be subject to two sets of laws which they must comply with: the United Kingdom laws on surrogacy, and those in the country in which the surrogacy takes place.*

Intended parent(s) must look carefully at the laws in the country in which they are planning their surrogacy, and in particular consider the following issues at the outset:

• is surrogacy legal in that country? If so, who can enter into surrogacy arrangements there, and what conditions need to be fulfilled? (see sections 1 and 2 below)
• are surrogacy arrangements enforceable in that country? What are the legal implications of entering into an agreement in that country?
• who will be the legal parents of a child born through surrogacy at birth? (see section 3 below)
• what are the costs involved in surrogacy in that country? (see sections 4 and 5 below)
• what nationality will the child have at birth? (see section 7 below, and Guide 3)
• what travel documents will be needed to return to the United Kingdom? (see section 7 below, and Guide 3)
• which further steps are necessary to be recognised as legal parents in the United Kingdom? (see Guide 3)

*Where conception and birth take place in different countries, different laws may apply in each of these locations.

1. Who can become a parent through surrogacy?

While surrogacy is legal in the United Kingdom, the same is not true in many countries. Therefore it is essential to understand whether, in the jurisdiction considered, surrogacies can legally be undertaken and by and for whom.

For example, intended parent(s) should consider – amongst other factors – the following issues:

• does the country permit surrogacy by single persons, or are only couples permitted?
• do couples have to be married?
• can the couple be of the same sex?
• does the country require a genetic connection between the child and intended parent(s)?
• are there age limits for intended parent(s)?
• are there any restrictions on the reasons why the intended parent(s) are entering into surrogacy? For example, does there have to be a medical need?
• are there any requirements concerning the existing family of the intended parent(s)? For example, some jurisdictions require that intended parent(s) do not have a child already.
• are there any residency requirements for intended parent(s)?
• are there any checks on suitability of intended parent(s)? For example, is there a criminal record check?

In addition to these requirements for intended parents, there may also be restrictions on who can act as a surrogate.

There may also be limitations on payments that can be made to the surrogate, and third parties who facilitate the surrogacy. Indeed, in many countries such payments even are illegal.

2. The surrogacy agreement

Surrogacy contracts or agreements are not enforceable in the United Kingdom under existing United Kingdom legislation.

This means that under United Kingdom law, intended parent(s) cannot require that the care of the child be transferred to them, and the surrogate cannot pursue intended parent(s) for sums of money promised under such an arrangement.

As surrogacy agreements are not enforceable under United Kingdom law, the Foreign, Commonwealth and Development Office (FCDO) are not able to assist with enforcing these.

Nevertheless, a surrogacy agreement can be a useful document which sets out the intentions of both the surrogate and the intended parent(s), and what they expect of each other and often is the basis for the legal process to become parents under United Kingdom law. (For more information on this procedure, see Guide 3)

A comprehensive surrogacy agreement covers all eventualities and decision-making events, including, but not limited to:

• conception arrangements (including express consent of intended parents for any sperm and/or eggs to be used, for what purposes, and for what time period)
• pregnancy arrangements
• birth arrangements
• post-birth arrangements
• things that could go wrong, and how these would be resolved (miscarriage, foetal reduction, decisions to terminate)
• what would happen if the intended parent(s) cannot travel to collect the child when they are born
• post-surrogacy contact
• information that will be given to the child
• expenses, payments and costs

These agreements can be very complex, and therefore it is very strongly advised to seek professional or legal advice.

Intended parent(s) should be aware that the surrogacy arrangement may be enforceable in the country where the surrogacy takes place. It is important that intended parent(s) are aware of their legal responsibilities arising from this agreement.

3. Legal parenthood

Before entering into a surrogacy arrangement, it is important for intended parent(s) to consider who will be recognised as the legal parents of the child.

Under United Kingdom law, being named as a parent on a birth certificate from another jurisdiction does not always mean that you are the legal parent. The United Kingdom will always apply its own law on parenthood, no matter where in the world the surrogacy took place, or which nationality those involved in the arrangement have.

3.1. Legal mother of the child

Under United Kingdom law, the legal mother of a child at birth is always the person who gives birth, irrespective of whose genetic material has been used. Therefore, the surrogate will always be the legal mother at the time of birth.

This means that in the case of intended single mothers or two intended female parents, none of them will be the legal parents of the child at birth.

For the purposes of United Kingdom law the surrogate only loses legal parenthood if it is removed by a court order in the United Kingdom. It is typically transferred to the intended parent(s) through a Parental Order or adoption.

3.2. Legal father of the child

The situation of the legal father is more complicated and depends on the marital status of the surrogate:

3.2.1. Married surrogate

If the surrogate is married to a man, then under the law of the United Kingdom her husband will also be a legal parent of the child. This will be the case no matter whose genetic material has been used in the surrogacy arrangement.

Even if intended parent(s) obtain a birth certificate or court order from the foreign jurisdiction naming the intended parent(s) as the legal parents of the child, these are not recognised under United Kingdom law, which will still regard the surrogate and her husband as the legal parents. This means that parenthood will have to be transferred by a Parental Order in the United Kingdom (on which see Guide 3).

3.2.2. Unmarried surrogate

If the surrogate is not married to a man at the time of birth, the intended father will be considered the legal father under United Kingdom law provided that his sperm has been used to conceive the child. A Parental Order will be needed to remove legal parenthood from the surrogate, and (where appropriate) to make the other intended parent (if any) the legal parent of the child (on which see Guide 3).

3.3. Transferring legal parenthood

United Kingdom law has a mechanism to transfer legal parenthood from the surrogate (and her husband, if applicable) to the intended parent(s) – known as a “Parental Order”. This process will have to be undertaken once the intended parent(s) return to the United Kingdom with the child. The process for this is described in Guide 3.

If a Parental Order is not possible, intended parent(s) may seek an adoption order.

4. Payments

Within the United Kingdom, agencies or third parties cannot negotiate surrogacy arrangements on a commercial basis. However, non-profit organisations may charge reasonable expenses for their services.

These laws do not apply outside the United Kingdom, and surrogacy agencies in foreign jurisdictions will often charge large sums of money to facilitate a surrogacy arrangement.

While such payments are not directly governed by United Kingdom law, they will be relevant to whether legal parenthood can be transferred to the intended parents within the United Kingdom. When deciding whether to recognise the parenthood of the intended parent(s) through a Parental Order, the courts must be satisfied that no money or other benefit has been transferred or exchanged – other than for “expenses reasonably incurred”. This will include any payments made to the surrogate, and to surrogacy agencies, in other jurisdictions.

4.1. What are “expenses reasonably incurred”

While the law does not provide a definition of “reasonable expenses”, it is possible to obtain some indication of this through previous cases that have been decided by the courts.

As a guide, courts have generally accepted as expenses:

• the surrogate’s loss of earnings
• the surrogate’s partner/spouse’s loss of earnings
• additional childcare to support pregnancy and clinic/antenatal visits
• paid help in the home to support pregnancy
• additional food and other supplements
• additional classes or therapies to support pregnancy
• travel and accommodation before, during and after pregnancy (whilst setting up the surrogacy arrangement, treatment and in recovery)
• maternity clothes
• a modest recovery break for the surrogate and her family; and
• other incidental expenses that relate directly to the treatment and pregnancy

Having said this, every case is different, and what is reasonable will depend on the specific circumstances.

4.2. What if payments exceed “reasonable expenses”?

Where payments have exceeded “reasonable expenses”, the courts must decide whether to authorise them retrospectively. Intended parent(s) must provide full details of such payments to the courts for such purposes.

In practice, the courts have generally been willing to authorise payments to surrogates and agencies, despite them exceeding “reasonable expenses”, on the basis that it is in the best interests of the child for the legal parenthood of the intended parent(s) to be recognised.

See: The Surrogacy Pathway, Department of Health and Social Care

5. Other expenses for the surrogacy

It is important that intended parent(s) are aware of the kinds of costs that may be associated with an international surrogacy arrangement. These costs may often be very high.

Below are some categories of costs that intended parent(s) should consider, although this should not be seen as comprehensive, and not all will be relevant to all surrogacies. Intended parent(s) must ensure that they are able to cover these costs, including unexpected ones.

5.1. Legal advice

Many intended parent(s) seek legal advice from an experienced practitioner when considering a surrogacy, and indeed this is highly recommended. Expert advice can help ensure the proper processes are followed, and can avoid much higher costs at a later stage.

5.2. Agency fees

Many intended parent(s) undertaking an international surrogacy arrangement work with an agency or surrogacy organisation in that jurisdiction.

Intended parent(s) should ensure that they are aware of all the fees associated with that agency/organisation before starting the surrogacy process, to ensure that there are no surprises further down the line.

5.3. Surrogate’s fees and expenses

In some jurisdictions, surrogates can receive fees and/or compensation for undertaking the surrogacy arrangement. It is important that intended parent(s) research the rules applicable in the particular jurisdiction, as well as the average costs for that location, and budget accordingly.

5.4. Fees for genetic material

If intended parent(s) are planning on using donor sperm or a donor egg, then they must factor in the cost of this, including any medical procedures. In some countries the cost for this can be very high, running into tens of thousands of pounds.

If intended parent(s) are planning to use their own sperm or eggs (or both), they will have to consider the arrangements and related costs for transferring their genetic material to where it is going to be used.

5.5. Treatment costs

If conception is taking place at a fertility clinic – as will most likely be the case – there will be a cost involved. These costs will often be very significant, particularly if multiple attempts at fertility treatment are required.

5.6. Medical expenses

In addition to costs for the fertility treatment, other medical expenses usually arise. For example, expenses relating to pre-natal care, as well as hospital fees for the birth.

Intended parent(s) should also be aware of the possibility that the child may need medical care after birth, for example if they are born prematurely, or with a medical issue that needs immediate treatment. The costs for this can be very high.

Intended parents should note that the Foreign, Commonwealth and Development Office (FCDO) cannot pay medical expenses or for medical evacuations.

5.7. Insurance

In addition to travel insurance for the intended parent(s) for their trip to the country where the surrogacy is taking place, it may be advisable to take out medical insurance for the surrogate, as well as the child/children when they are born, to cover unexpected medical expenses.

Not all insurance agencies will offer such policies, and some will have restrictions as to what kind of surrogacy arrangements are covered. This is something intended parent(s) should research before entering into any surrogacy arrangement.

5.8. Travel, visas and accommodation

Undertaking surrogacy in another country will necessarily involve travel, visa and accommodation costs. Intended parent(s) might have to travel to the chosen country on several occasions, and stay there for extended periods of time, often several months.

A stay of up to several months can be required if the child has medical complications, or there are delays in obtaining the relevant travel documents (on which see Guide 3).

5.9. Transfer of parenthood

Upon return to the United Kingdom, intended parent(s) must apply for a Parental Order to transfer legal parenthood. There is a court fee for such an application – £232 as of January 2022.

Intended parent(s) may also wish to obtain legal advice and/or representation for this process. Although this is not mandatory, it is recommended by the Human Fertilisation and Embryology Authority, and the family court, that legal assistance is sought by anyone undertaking a surrogacy arrangement.

6. Using an agency

Many intended parent(s) undertaking an international surrogacy arrangement work with an agency or surrogacy organisation in that jurisdiction.

Before entering into any arrangement, intended parent(s) should ensure that the agency/organisation is legal in that jurisdiction, and where appropriate, certified to undertake such arrangements.

Not all agencies/organisation are equal in their service and performance. Intended parent(s) should seek reviews from other families who have used that agency/organisation. Where possible, these reviews should be sought independently, and directly from the families themselves, rather than simply relying on reviews provided by the agency/organisation.

Intended parent(s) should ensure that they are aware of, and agree to, all costs involved in the arrangement. In particular, they should confirm the following:

• what services and fees are included in the total cost?
• which services will intended parent(s) have to pay separately for?
• what expenses are variable, and what are fixed fee?
• what fee is being paid to the surrogate?
• what happens if the pregnancy is unsuccessful?

Intended parent(s) should also consider the medical facilities that are available through the agency/organisation:

• what is the success rate of the clinic?
• does the clinic have a donor bank for sperm or eggs (if needed)?
• if the intended parent(s) already have frozen embryos, can the clinic use these?
• how will the surrogate be chosen, and what medical checks will be undertaken?

7. The child’s nationality and travel documents

It is important to think about what nationality the child will have when they are born, and how they might obtain or claim British citizenship if they do not have it from birth.

Likewise, intended parent(s) should research in advance what travel documents may be needed for the child to exit the country of birth and travel to where the intended parent(s) live.

For more information about the child’s nationality, and the travel documents that might be required, see Guide 3.

8. Support

Surrogacy can be an emotionally demanding process, and it is important that the intended parent(s) have support systems in place to cope with this.

It may be advisable to seek the assistance of a surrogacy organisation, which operates on a non-profit basis in the United Kingdom. Surrogacy organisations also hold information sessions that ensure intended parent(s) understand the risks and implications of surrogacy, as well as providing ongoing information and support.

Not for profit surrogacy organisations operating in the United Kingdom include:

Childlessness Overcome Through Surrogacy (COTS)

Surrogacy UK

Brilliant beginnings

My surrogacy journey

In addition to support from specialist agencies, it is not advisable to embark upon surrogacy without proper legal advice. While this guidance points out many of the issues that intended parent(s) should consider when undertaking an international surrogacy agreement, it cannot be a substitute for professional advice.

9. Useful information and resources

Legislation:

Surrogacy Arrangements Act 1985

Human Fertilisation and Embryology Act 2008

United Kingdom Government guidance:

Nationality Policy, Surrogacy

Intercountry surrogacy and the immigration rules

Practical information for intended parents

The surrogacy pathway: surrogacy and the legal process for intended parents and surrogates in England and Wales

Disclaimer

This information document has been produced as a general overview for those considering surrogacy. Some of the information has been simplified for ease of understanding, and some technicalities have not been discussed in detail. The information does not address the specific requirements of individual cases and is provided for informational purposes only.

The information does not in any way constitute legal advice and should not be relied on or treated as a substitute for specific advice relevant to the particular circumstances of a case. We recommend that appropriate legal advice is taken from a qualified lawyer before taking, or refraining from taking, any action in a case.

The Foreign, Commonwealth and Development Office and Cambridge Family Law accept no responsibility for any errors, omissions or misleading statements in this document, nor for any loss which may arise from reliance on the information provided.

The document contains hyperlinks to further information sources on external or third party internet sites – for the avoidance of doubt, the Foreign, Commonwealth and Development Office is not responsible for the content, safety or security of any external or third party internet site.