Guidance

Guide 2 for intended parent(s): planning for travel and birth

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

• intended parent(s) should seek specialist counselling, ideally before they embark on the surrogacy process. (see section 1 below)
• travel arrangements (including visas, where required) should be made well ahead of the birth date. Intended parent(s) need to be prepared to stay in the birth country until travel documents for the child can be obtained, which may take several months. (see section 2 below)
• intended parent(s) need to discuss and make express plans with the surrogate regarding pregnancy care and birth options. (see section 3 below)
• in particular, intended parent(s) should make and agree on a birth plan and the sharing of medical information. (see sections 4 and 5 below)
• they must also agree on post-birth arrangements, in particular when and where the transfer of care will take place, who will take post-birth medical decisions concerning the child and whether the surrogate will breastfeed, or provide breast milk, and for how long. (see section 6 below)
• intended parent(s) need to be prepared for potential medical complications and should consider taking out insurance for the surrogate, the child/children and themselves. (see section 7 below)
• to protect themselves and the children, the intended parent(s) should make or update wills to cover the new situation before embarking on a surrogacy arrangement. (see section 8 below)

1. Counselling

The Human Fertilisation and Embryology Authority (HFEA) Code of Practice recommends that all parties involved in a surrogacy arrangement should be offered counselling to discuss the implications of surrogacy, and the potential challenges they will face throughout the surrogacy process. Some countries may require counselling as a mandatory step before surrogacy takes place; intended parents should check the requirements in the country where the surrogate intends to give birth.

Intended parent(s) should consider seeking specialist counselling either before, or during, the surrogacy process. For example, the British Infertility Counselling Association is a registered charity which is recognised by the HFEA, and can assist in finding an appropriate counsellor.

2. Travel arrangements

Intended parent(s) may wish to travel to the country in which the surrogacy is taking place, either before, or at the time of, the child’s birth. For this, visas may be required and should be arranged in good time. Intended parents should also take into consideration that the baby may arrive early, and plan accordingly.

Intended parents should consult the Foreign, Commonwealth and Development Office (FCDO) travel advice pages for the country they are embarking on surrogacy in before travelling to that country. FCDO travel advice provides information and advice to help British nationals make informed decisions about their safety abroad.

Intended parents should note that it is their responsibility to make sure they have a valid passport and the correct visa for their stay in another country. If they experience difficulties entering a country (for example, if they do not have a visa or their passport is not valid) consular staff will not be able to help them enter that country.

When planning such travel, intended parent(s) should also bear in mind that it may take some time for a child to be granted travel documents to return to the United Kingdom following birth – sometimes this takes several months. During this time, the child may not be able to leave the country and the intended parent(s) will need to make arrangements accordingly.

Intended parent(s) must ensure that they have planned for a potentially lengthy stay in the country of the child’s birth. For example, they should consider:

• how long does it usually take to obtain travel documents for surrogate-born children in the country in question?
• do the intended parent(s) have sufficient financial resources to pay for an extended stay in the foreign country?
• will both intended parents stay in the foreign country, or will one return home earlier?
• can the intended parent(s) take leave from work for an extended period of time?
• do the intended parent(s) have appropriate visas to remain in the foreign country for an extended period of time?
• where will the intended parent(s) stay? In particular, will the chosen accommodation provide the space and facilities to care for a newborn child?
• what kind of support will the intended parent(s) have in place in the foreign country to assist them in caring for their newborn child?

3. Pregnancy and birth options

The preferences of the surrogate and the intended parent(s) towards pregnancy care and birth options should be discussed at length before the parties enter into a surrogacy agreement. If the intended parent(s) are not willing to accept the preferences of the surrogate, then they should instead find a surrogate that better matches their own value systems.

Where an issue arises that has not been covered by the surrogacy arrangement, intended parent(s) should respect the preferences of the surrogate. In particular, the surrogate should maintain at all times her right to bodily autonomy, and to make decisions concerning her own medical care and treatment.

4. Confidentiality and information sharing

While most surrogates will give consent for intended parent(s) to receive medical information about the pregnancy and the baby, this is not an automatic right.

Intended parent(s) and surrogates should discuss what information is to be shared, how it is to be shared, and by whom. They should then record any agreement in writing (either in the surrogacy agreement, or in a separate document), so that this can be provided to the medical teams involved in the surrogacy process.

5. Making a birth plan

The surrogate and intended parent(s) should prepare a birth plan to record their wishes and set out the details of how they would like to be treated during the pregnancy and birth.

The surrogate’s wishes should take priority in the birth plan, as it relates to treatment happening to her body. Where the surrogate changes her mind about certain procedures, this should be respected.

If a dispute arises, surrogacy organisations, the surrogacy agency, or counsellors can provide valuable support.

Some of the issues commonly set out in the birth plan are:

• details confirming routine antenatal (pre-birth) care that will be undertaken
• identification of individuals who will attend scans and appointments with the surrogate
• details of where the surrogate will give birth
• the surrogate’s preferred method of birth
• who will be present at the birth if it is:
  • vaginal
  • planned caesarean section
  • emergency caesarean section, epidural
  • emergency caesarean section, general anaesthetic
• what pain relief options the surrogate would like
• who will make decisions for surrogate if she can’t speak during birth
• handling of child at birth, including cord cutting and skin-to-skin contact

6. Post-birth arrangements

The surrogate and intended parent(s) should come to an express agreement of what will occur after the birth of the child.

In particular, they should decide who will care for the child immediately following birth, and when and where the transfer of care will take place. It is also important to agree expressly who will make medical decisions about care/treatment for the child in the event of complications following birth.

In addition, intended parent(s) should decide with the surrogate the feeding method for the child – whether the surrogate will breastfeed, or provide breast milk, and for how long.

7. Medical complications

While many surrogate births go very smoothly, in some cases, the child may require medical treatment following birth. This can range from quite minor procedures, to significant and long-lasting medical complications.

It is important that intended parent(s) are aware of this possibility, and plan accordingly. If the child requires an extended stay in a foreign hospital, this can involve significant expense. Likewise, a medical transfer back to the United Kingdom can cost tens of thousands of pounds. Intended parent(s) should ensure they have sufficient resources to cover such an eventuality. Alternatively, they may wish to take out insurance against this. Intended parents should note that the Foreign, Commonwealth and Development Office (FCDO) cannot pay medical expenses or for medical evacuations.

Extended medical treatment for the child may also involve the intended parent(s) staying in that jurisdiction for longer than they had originally planned. Any budget should consider the costs involved in such a stay, including ongoing accommodation.

8. Legal planning

8.1. Insurances

As with any pregnancy, a surrogate pregnancy carries with it some risk. Intended parent(s) may want to consider having life and medical insurance in place for the surrogate.

Moreover, intended parent(s) may wish to take out insurance to cover any medical expenses that may arise for the child in the foreign jurisdiction, as well as for themselves, before travelling.

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.

8.2. Wills

When embarking on a surrogacy arrangement, intended parent(s) may wish to ensure that they create a will (or update their existing one). This will be a valuable tool to protect the child in the case of the intended parent(s)’ death, by appointing appropriate guardians, or clarifying the intentions of the intended parent(s) in relation to inheritance for the child.

9. Dealing with disputes

9.1. What happens if the surrogate wants to keep the child?

While in practice these situations are rare, there is a risk that a surrogate may change her mind about the intended parent(s) taking over the child’s care after birth. There is also a risk that the relationship between the surrogate and intended parent(s) may run into difficulties or there may be a difference of opinion about an aspect of care.

Under United Kingdom law, surrogacy contracts and agreements are not legally binding. Therefore, the surrogate is always the legal mother at birth, and it is entirely her choice as to whether she transfers care or parenthood of the child to the intended parent(s). To obtain a Parental Order in the United Kingdom, intended parent(s) will require the consent of the surrogate (and any other legal parent at birth). A Parental Order cannot be made against the surrogate’s wishes.

The laws in the country in which the surrogacy arrangement is being undertaken may differ, so intended parent(s) should seek specialist legal advice as to what steps they can take in that jurisdiction.

9.2. What happens if the intended parent(s) no longer want to continue with the surrogacy arrangement?

Under the laws of the United Kingdom, a surrogacy arrangement is not enforceable. However, intended parent(s) must also bear in mind that surrogacy arrangements may be enforceable in the country in which they have undertaken the surrogacy and they may be subject to the laws of that country. Intended parent(s) should seek legal advice on this issue.

Intended parent(s) should consult specialist legal advice in that jurisdiction should they wish to withdraw from the arrangement. They should note as surrogacy arrangements are not enforceable under United Kingdom law, the Foreign, Commonwealth and Development Office (FCDO) is not able to assist in enforcing these.

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.