UK surrogacy agreements

Even though surrogacy agreements are not legally enforceable in the UK, intended parents and surrogates need to agree on a range of questions before embarking on a surrogacy journey together and the best way to do this is to put things in writing.

A written agreement provides structure to ensure you have properly discussed key issues, and gives clarity about what you have agreed as a reference point if anything unexpected happens further down the line.  It also creates a mechanism to discuss any subjects which may feel awkward. It is important both for surrogacy teams who have been matched or met online, and for friends and family who already have an existing relationship.

Current UK government best practice guidance emphasises the importance of putting things in writing and makes clear that healthcare providers (at all stages) should encourage a written agreement to be put in place if it has not been already.

The current law does not permit lawyers in the UK to prepare surrogacy agreements.  However, ensuring you have access to a well-informed template and getting this objectively reviewed is important.  Care should be taken when working with template surrogacy agreements which have not come from a reputable source since many are based on overseas surrogacy arrangements where the law and culture around surrogacy can be very different.  As well as providing a clear template document, Brilliant Beginnings takes our teams through a careful process of meetings to help you ensure your agreement is clear and complete.

What should a UK surrogacy agreement cover?

According to best practice guidance published by the Department of Health a UK surrogacy agreement should include:

Personal details – The names, addresses and marital status of the intended parent/s and the surrogate and her partner.

Pre-conception arrangements – Anything that has been agreed about the time before the team starts trying to conceive.

Conception arrangements – How embryos will be created, details of where and how many embryos will be transferred or where the home insemination will take place, the number of cycles the team will try before reviewing their agreement etc.

Pregnancy arrangements – Expectations about communication and emotional support, attendance at appointments and scans, ante-natal tests, decision-making if there is a problem with the pregnancy, provision of information to the intended parents, surrogate lifestyle issues etc.

Birth arrangements – Expectations for the kind of birth (e.g. home or hospital), who will be present, skin-to-skin contact, any personal wishes etc.  The team will also likely be asked to prepare a birth plan further down the line but agreeing things in principle at the outset is always sensible.

Post-birth arrangements – How you will manage leaving the hospital and any issues that arise in the immediate post-birth period.

Things that could go wrong – How you will deal with possible problems such as miscarriage, stillbirth, if a decision needs to be made about terminating the pregnancy and any breakdown in your relationship.

Communication and future relationship – The kind of relationship you hope to have in the long term, how open you will be with any child about their origins, future provision for contact if the child wants it.

Legal issues – Legal parenthood, birth registration and the parental order.

Expenses and costs – This is often one of the most difficult areas of discussion but clarity about financial arrangements is incredibly important.  As well as agreeing how much will be paid, you should set out when and how payments will be made and what the financial implications will be if anything unexpected happens, including a change in circumstances, miscarriage or early birth.