In our second article for this series on surrogacy, we want to take a look at the importance of the Surrogacy Agreement: a document that is very often not even thought about and contemplated.

 (C) Alexuwka/Depositphotos
(C) Alexuwka/Depositphotos

Read on and assess the importance of this document yourself. There is a lot of adage in the old saying: ‘to be forearmed is to be forewarned’.

Starting out on the road to surrogacy and selecting a surrogate who will agree to carry your unborn child will undoubtedly be one of the most exciting stages of this procedure and naturally, there will be a number of issues that you will consider important about the way in which your surrogate carries your unborn child and the process following the birth of your child. For many people, these concerns center on the surrogate’s lifestyle when carrying your child: making sure that she does not consume any alcohol or smoke, together with many other relevant issues about the way in which your unborn baby is carried.

In the UK, traditionally, the surrogate that is chosen will be a friend or a family member, a person who you are close to and who has, out of love, agreed to this to enable you your future happiness – to become a parent. It is therefore difficult to think about what could possibly happen if it all goes wrong. Being caught up in the euphoria of having a baby can become all consuming: so much so that you lose sight of the important considerations such as what would happen if the surrogate changes her mind and wants to keep the baby? What if you and your partner split up while the surrogate is pregnant? What if the surrogate is pregnant with multiple foetuses? How will these issues be resolved if they become applicable?

Without sounding too commercial here, when you purchase a new sofa or a new car on finances, you may enter into a hire purchase agreement, or if you rent a property you will enter into an agreement with your landlord as to the rent and your landlord’s obligations. However, why is it that for the majority of people who choose surrogacy as their method of starting a family, do not even think about the benefits of drawing up an agreement governing how the surrogate will carry your unborn child and an agreement that can cover all eventual possibilities.

Surrogacy is legal in the UK, albeit restricted. The law in this country will not recognise a surrogacy agreement as a binding agreement on either of the parties involved, during the period preceding and immediately after the birth of your child. However, it is a document that the relevant parties would have signed and if drafted correctly, it will highlight the fact that all parties are entering the agreement voluntarily, having received independent legal advice. This being the case, the strength of the surrogacy agreement will be increased and will stand as persuasive authority if the matter ever ended up in Court. This means that although the Courts are not compelled to enforce the terms agreed between both parties, it can be argued that the Courts should support the terms entered into and to order the non-complying party to rectify the situation in accordance with the original agreement.

A surrogacy agreement should not only cover the important details of the arrangement but also establish each party’s legal rights and address their responsibilities too.

Of course no-body wants to think about the possibility that things may go wrong, and for many the thought of making an application to the Court for enforcement of the terms of the surrogacy agreement will be daunting and expensive. But imagine this: you have selected your surrogate, the pregnancy has been confirmed, you have been to the three month scan and all is healthy: this little baby’s image is printed and in your wallet. That night you celebrate and tell your friends and family of your forthcoming family member. You decorate the nursery, buy the cutest of baby clothes and book your maternity/paternity leave from work. The calendar in your kitchen at home has each day struck off: the nine month countdown is almost over…then you receive the call that you had never contemplated: your surrogate has now changed her mind. That sharp intake of breath that you just took was just the tip of the iceberg. Take a moment to reflect on the heartache and grief that you will endure. It is not an understatement to liken the extent of this pain and upset to bereavement.

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Without a surrogacy contract, there will be nothing that you can do. With a detailed surrogacy agreement, signed by all parties, you stand in a strong position to enforce your position and take custody of your child.

It is always better to be prepared for every eventuality. Having said that, there is no need to approach surrogacy with trepidation and with fear that you may be entering into a complex legal nightmare. The vast majority of intended parents go through the procedure without any difficulties arising – but it is essential that you have an experienced and sympathetic legal team representing you from the very beginning..

Here at Pinder Reaux & Associates, let our specialist family team take the stress and strain off you (and your partner) and let us draw up the agreement you will need, so as to ensure you and your unborn baby’s future is best protected from the outset.

Our next article will look at surrogacy in USA and how the systems and procedures out there are so different and so much more advanced.