svitlana10 © Depositphotos

Surrogacy is increasing its viability in being the choice of many individuals who wish to have a child.

svitlana10 © Depositphotos
svitlana10 © Depositphotos
Most of us have heard about the celebrity couples of Elton John and his partner David Furnish, who reportedly paid £20,000 to the surrogate mother of their newborn son Elijah Joseph Daniel Furnish-John, who was also the same surrogate that gave birth to their first son, Zachary. Nicole Kidman and her country singer husband Keith Urban welcomed their surrogate daughter Faith Margaret in Nashville, on 28 December 2010 and some of us will remember the speed in which Cristiano Ronaldo left the World Cup in 2010, following Portugal’s knock out of the World Cup: he had received news that his son had been born – arranged through an unknown surrogate in USA. Apparently $10million was paid by Ronaldo to ensure that the biological mother’s identity remained a secret.

These examples may appear to reflect surrogacy as something which is available just to the rich and famous. But the truth of the situation, is that this is not the case at all. Surrogacy as a means to having a child is now fast becoming a popular choice for many that want to start, or increase their families.

But once you have made that important decision; to create or extend your family with a surrogate baby, you are then faced with the daunting dilemma of finding your surrogate mother. Who do you choose? Who will agree to carry your baby for the next nine months? Where do you start in your journey to find the right carrier for your child?

Of course only a few expectant parents will have the benefit of having a family member or a close friend who will come forward to be your surrogate mother. The vast majority of expectant parents would not know where to start in their search for their surrogate mother in the UK. Many will not have the easily available connections and knowledge that the stars can access with their wealth and therefore finding the right carrier for their child is not easy.

In addition to the above, despite surrogacy being legal in the UK, the law imposes certain restrictions, such as a prohibition on advertising for surrogates or potential surrogates offering surrogacy.

The effect of placing a bar on advertising for a surrogate mother or offering surrogacy services, makes the search for your surrogate mother much more difficult. Unlike some other parts of the world, expenses in the UK are limited to what is required for the pregnancy, whereas in other countries, such as the USA, there are no financial restrictions. The financial compensation in the USA, makes surrogacy much more appealing to the potential surrogacy mother and therefore many more potential surrogacy mothers are likely to come forward and agree to become your surrogate in return for financial compensation.

In contrast to the UK and European perspective, the USA is widely considered to be the preferred country for surrogacy because of its favorable legal, societal and medical conditions. Almost every U.S state permits compensated surrogacy.

The USA also offers a supportive environment for surrogates and intended parents. As a result, many Europeans have been turning to the USA for help in having their own biological children.

There is no doubt that the USA surrogacy arrangements are attractive, and this is clearly evidenced by the hundreds of couples who travel to the USA every year to benefit from the fewer constraints of surrogacy, in search of a surrogate or egg donor.

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The laws on surrogacy abroad are often very encouraging, especially in USA where many states have considerably more legal provisions for surrogacy than in the United Kingdom.

More British parents are turning to the USA when considering surrogacy mainly because of the ready supply of surrogate mothers (and egg donors) being the major practical attraction. The surrogacy arrangement will also be enforceable; with the USA allowing the UK intended parents to become legal parents automatically or by following a simple legal pre-step.

The significant benefit of automatically being the legal parents of your surrogate baby, avoids any potential difficulties of your surrogate choosing to retain parental responsibility for your child. By way of example, in the UK at birth, the surrogate mother is regarded as the legal mother, regardless of the child’s genetic origins. Her husband or partner is regarded as the legal father! To rectify this extremely worrying legal dilemma, you will need to obtain a Parental Order and this cannot always be easy, especially if your surrogate is refusing to provide her consent because she has changed her mind.

It is unfortunate that the UK legislative approach to such an important issue as surrogacy is not fully supportive. The law only assists non-commercial informal arrangements, and if parents are unable to access rights like maternity leave (as is the case now) as a result of having entered into these situations, then the law thinks “so be it” and that cannot be fair.

But in the modern world, with intended parents increasingly crossing the globe for fertility treatment, we need to seriously question this basic approach. We also need to take account of our modern human rights and anti-discrimination laws which do not allow unfair treatment of minority groups, however small they are and this includes expectant parents of surrogate children. There may be good policy reasons for discouraging the commercialisation of surrogacy, but we need to address with more courage the issue of whether our surrogacy laws are still fit for purpose in the modern world, and here at Pinder Reaux, we believe they are not.

Our specialist team of family lawyers support the need for change in our legislation to ensure that expectant parents to surrogate children are afforded equal support, legal rights and acknowledgment as others.

If you would like to discuss these issues in further details and are thinking about choosing to create or extend your family with a surrogate child, please contact us on 0208 252 7373 and a solicitor in our family team would be happy to discuss the matter with you.

Our next article on surrogacy (in a fortnight’s time) will focus more on surrogacy in the USA and just how this could be the right choice for you.