Navigating surrogacy across borders can be a daunting task, especially when it comes to understanding the intricate legal landscape. Without proper guidance, intended parents may find themselves entangled in legal issues that could have been avoided with a little foresight. At our upcoming event, we’ll delve into these critical aspects to ensure you’re well-prepared. Here’s a look at seven legal pitfalls in international surrogacy that you simply can’t afford to ignore:
1. Lack of Clear Surrogacy Contracts
Some countries allow for protective legal contracts. However, one of the most common pitfalls is having an unclear or poorly drafted surrogacy contract. This document is crucial as it outlines the rights and responsibilities of both the intended parents and the surrogate. Without a comprehensive contract, disputes can arise regarding expectations, financial matters, and parental rights. Ensuring that your contract is clear, detailed, and legally sound can prevent misunderstandings and legal conflicts.
We asked Antonia Felix, Partner at Mishcon de Reya‘s Family team, to share the key elements that should be included in a surrogacy contract to prevent future disputes. Here’s what she had to say:
Surrogacy contracts are not legally enforceable in England, but they are incredibly important. They should record your intentions and set out the parameters of your agreement, including information such as how many embryo transfers you will have, who will attend hospital appointments and what expenses you are planning to pay your surrogate as part of your surrogacy journey. You can include detail that is important to you, for example how often you want to be in contact during the pregnancy and it is important you take your time to consider what to include.
Antonia Felix
Partner, Mishcon de Reya
Family Team
2. Ignoring Parental Rights and Legal Parentage
Understanding and establishing legal parentage is essential in the surrogacy process. If these rights are not clearly defined or legally recognized, it can lead to challenges in asserting parental rights. This issue can delay the process of obtaining parental orders or even create complications in legal recognition. Proper legal counsel is vital to navigate this aspect and secure your parental rights effectively.
So, how can intended parents ensure their parental rights are legally protected throughout the surrogacy process? Here’s what Alice Mantle, Managing Associate at Mishcon de Reya advised:
Following many international surrogacy arrangements, you may be recognized as your child’s legal parents in the country of birth. However, UK law still identifies the surrogate as the legal mother, and if married or in a Civil Partnership, her spouse or partner as the other legal parent. This discrepancy means that while you have documentation naming you as parents abroad, it won’t be recognized in the UK. To resolve this, you must apply for a Parental Order after the birth. Once granted, you’ll receive a British birth certificate naming you as the legal parents. As part of the process, you can also request Parental Responsibility to make decisions for your child until legal parentage is officially transferred.
Alice Mantle
Managing Associate, Mishcon de Reya
Family Team
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3. Overlooking Immigration and Citizenship Requirements
For intended parents who are bringing a child born via surrogacy back to the UK, understanding immigration and citizenship requirements is critical. Failing to address these requirements can lead to significant delays and complications in obtaining necessary documents. Being proactive and informed about these processes will ensure a smoother transition and avoid unnecessary hurdles.
Intended parents should ideally be considering the immigration and citizenship implications for their newborn child well in advance of identifying their surrogate. This is important because the geographical location of the birth will determine whether the child is born a citizen of that particular country, and important practical steps will need to be taken in order for the child, once born, to leave that country and enter the UK with the intended parents. Actions that need to be taken will depend on a number of factors, including the country the child is born in, the nationality and UK immigration status of the intended parents and the relationship status of the surrogate at the time of the child’s birth.
Hannah Barnett
Partner, Mishcon de Reya
Immigration Team
4. Neglecting to Address Financial and Medical Obligations
Surrogacy involves various financial and medical considerations that need to be addressed upfront. These include covering medical expenses, surrogate compensation, and other related costs. Without clear terms outlined in the contract, disputes can arise over who is responsible for what. Ensure that all financial and medical obligations are clearly documented and agreed upon to avoid conflicts later.
Some intended parents choose to use a number of professionals on their journey and are more independent, others choose to use an agency who can sign post you and advise on how to find a surrogate and/or which clinic to use and where to obtain advice. Either way, you will need to consider the costs involved such as the fertility process, payment to the surrogate, medical care for the surrogate and your baby when it is born and insurance. It can be managed by keeping very detailed notes on what everything costs but also by asking an agency to assist you or an organisation such as Growing Families.
George Irving
Associate, Mishcon de Reya
Family Team
5. Failing to Secure Proper Legal Counsel
Navigating the legal aspects of surrogacy without expert advice can be risky. Legal professionals specializing in surrogacy can provide invaluable guidance and ensure that all legal requirements are met. Attempting to handle these complexities on your own can lead to misunderstandings and potential legal issues. Securing the right legal counsel is a crucial step in protecting your interests and ensuring a smooth surrogacy journey.
Not all family lawyers have experience in surrogacy. You need to find a lawyer with experience, empathy and the right knowledge to provide a solution-focused approach on your behalf. It is also good to consider what other help you may need and whether they can offer a full service which covers everything to do with surrogacy from parental orders, immigration, wills (including guardianship) and tax planning.
Antonia Felix
Partner, Mishcon de Reya
Family Team
6. Not Understanding Surrogacy Laws and Regulations
Navigating the legal aspects of surrogacy without expert advice can be risky. Legal professionals specializing in surrogacy can provide invaluable guidance and ensure that all legal requirements are met. Attempting to handle these complexities on your own can lead to misunderstandings and potential legal issues. Securing the right legal counsel is a crucial step in protecting your interests and ensuring a smooth surrogacy journey.
7. Not Preparing for Potential Legal Challenges
Surrogacy can present unexpected legal challenges, from disputes with the surrogate to issues with parental rights. Failing to anticipate and prepare for these challenges can result in delays or legal battles that could impact the surrogacy journey. By understanding potential risks and having a plan in place, you can better navigate these challenges and ensure a smoother process.
Don’t leave your surrogacy journey to chance—ensure you’re fully informed and prepared. Join us on 14 September in London for an in-depth exploration of international surrogacy, hear from top legal experts, and get answers to your most pressing questions.
Secure your place today and gain valuable insights to guide you through the complexities of surrogacy. We look forward to seeing you at the event and supporting you in making well-informed decisions for your family-building process.
Sam Everingham is the founder of Growing Families. He has extensive global networks with surrogacy researchers, families, agencies, and reproductive specialists, and has been helping couples and singles with their family building journey for over a decade. He is a regular media commentator and has co-authored articles on surrogacy in several reputable journals.
