Are there any legal issues which need to be examined before choosing surrogacy as a way of conceiving a child?
What is meant by surrogacy?
Currently worldwide there are many couples who wish to conceive a child but due to medical factors of one or in some kinds both of the parents they are unable to do so.
There are various options open to couples in this situation such as adoption. Surrogacy provides these couples with a different option.
Surrogacy is also an option for men who are part of a same sex couple and who consequently are unable to have children.
Surrogacy is a process whereby a third person (a woman) is brought in as a surrogate parent to carry the child throughout the course of pregnancy. The baby when born will not belong to the surrogate mother but will be provided to the original couple at birth. Consequently legal issues may therefore arise.
Two different kinds of surrogacy
Currently there are two different kinds of surrogacy. They are as follows:
- Gestational Surrogacy
- Traditional Surrogacy
- Gestational surrogacy is the most common form or surrogacy and is a process whereby the Intended mother (the mother of the original couple) or a Donor’s egg is used. The Child will therefore not be genetically linked to the surrogate mother.
- Gestational surrogacy is the most common option for a woman who is not able to carry a pregnancy.
- Traditional surrogacy happens whereby the surrogate mother’s egg is fertilized by a sperm donor or by the sperm of the Intended father (the father from the original couple).
- In the case of traditional surrogacy the unborn child will be genetically related to the surrogate mother.
Can we use IVF for either of these processes?
In both of the above options for surrogacy the child can be conceived by IVF – in-vitro fertilization – in alternatively by artificial insemination.
Does the surrogate mother have to be from the UK?
Traditionally couples who are unable to conceive and who choose the option of surrogacy will often opt for a surrogate parent from the same country. In some cases it may even be a friend who offers their services as a surrogate.
However, in certain countries couples do not have the option of surrogacy due to legal reasons or sometimes financial reasons.
Recently we have seen the introduction of International surrogacy which extends the opportunity for surrogacy to parents who are not able to achieve it in their own country.
So what are the legal issues which need to be taken into consideration?
A couple’s agreement with a woman to act as a surrogate parent is an agreement the same as any other which should be subject to the laws of contract. Many people may feel that it is not the best course of action to actually have an agreement in writing due to the subject matter of an agreement but in many cases a surrogate fee is involved so it should be desirable to have certain conditions in place.
The fee which will be paid to the surrogate parent will often depend upon the type of surrogacy which will be implemented. For example in relation to traditional surrogacy the surrogate parent is seen as both the carrier of the child but also the egg donor. Therefore many may feel that the surrogate fee should be higher than that for a Gestational surrogacy.
On the other hand a surrogate parent who is subject to a Gestational surrogacy may believe that their fee should be higher as they will be subject to more medication and often it is a process which is more time consuming.
How much fee is paid will depend purely on the parties involved but it is certainly wise to consider these kinds of issues when deciding on the fee.
Lump sum payment vs. scheduled payments
Many feel that it is not a good idea to offer a lump sum payment and that the preferable option may be to stager the payments throughout the different states of the pregnancy.
Often a monthly allowance is given which will be to cover such things as expenses on Insurance Premiums as a consequence of being pregnant, expenses in order to but medications and specific foods.
This monthly allowance and the conditions for which it will be provided will need to be fully explained in the contract.
It may also be a preferable option to insert a clause into the contract which specifies that the surrogate mother and her partner (if she has one) will give up all legal and parental rights and responsibilities for the child.
A clause such as this in a signed contract will eliminate any claim upon the child which the surrogate mother may wish to make in the future.