What You Need to Know About Surrogacy in the UK
G’day, Stephen Page from Page Provan Family and Fertility Lawyers. Today I’m talking about surrogacy in the UK. I’m an Australian surrogacy lawyer, not a UK surrogacy lawyer, but I’ve had plenty of clients who have done surrogacy in the UK.
I think the first thing that needs to be known about surrogacy in the UK is that the landscape, the legal landscape in the UK is pretty similar to Australia, namely that there is a ban on commercial surrogacy occurring there. The numbers were described by UK colleague Natalie Gamble as being about 200 children born domestically through surrogacy and a parental order is obtained.
So that’s what they call them in the UK, we call them Parentage Orders here, but they call them Parental Orders there and about 200 born overseas. Now, to give a comparison to Australia, we have about 60 or 70 births domestically in Australia through surrogacy and about 200 overseas.
So that makes quite a bit of a contrast when you think about the UK population being about three times that of Australia, and yet it’s about equal numbers between domestic and international, whereas ours is about four to one, four births overseas through surrogacy, as opposed to one domestically through surrogacy.
Therefore, it would appear on those numbers that it’s a bit easier to do surrogacy in the UK than it is in Australia. However, and there’s always a however, there are issues if you live in Australia and you’re thinking of doing surrogacy in the UK, and I’ve seen this with a number of clients.
One of those is if you have a surrogate in the UK but you live in Australia, you may need to obtain a Parental Order there and you will need to obtain permission from the UK court to allow the child to leave the UK, problem is that if you’re an intended parent living here, you’re not resident in the UK, so you may not, in fact get that permission.
Another significant feature of the UK with surrogacy is that there is not a ban on undertaking commercial surrogacy overseas, unlike the arrangements we have in some Australian states. For example, Queensland, New South Wales and the ACT that make it pretty clear that if you engage in commercial surrogacy overseas, you commit a criminal offence back home.
While it’s a criminal offence in the UK to engage in commercial surrogacy, you can do commercial surrogacy overseas. The, however, is that you must then go back to the court in the UK to obtain a Parental Order and the court will be concerned about whether you have engaged in trafficking of some kind of the surrogate and the manner in which you have undertaken that surrogacy.
You would think therefore it’s easier to engage in surrogacy overseas if you’re living in the UK than it is from Australia, but funnily enough, it seems to be the other way around.If you live in Australia and you do surrogacy overseas, typically you don’t have to go anywhere near an Australian court to show that you’re a parent.
But if you live in the UK and you do surrogacy overseas, for example, in the United States, and you get an order from a US court saying that you’re the parents, that order isn’t recognised in the UK, you’ve got to go to a UK court in addition and spend considerable money in doing so.
The legal regime throughout Australia is modelled on the UK model, and that means, in general, you have one to six months post birth before you can apply for a Parental Order or a Parentage Order. UK courts have allowed an extension of that time, it’s certainly much more flexible in doing so than here, because circumstances arise where parties didn’t realise that they could apply for an order and then they find themselves out of time.
So the court has allowed an extension. In most Australian states, there is the ability to engage lawyers to negotiate the terms of a surrogacy arrangement. South Australia has tightened that a bit. You can engage a lawyer, but you can’t otherwise pay someone to negotiate the terms of a surrogacy arrangement. In the UK, if you pay a lawyer to negotiate the terms of a surrogacy arrangement, you commit an offence.
So the result of that is that typically, you will have a pro forma surrogacy arrangement downloaded from the web and then you’re dealing with your surrogate and her partner directly. Certainly not such a good outcome, but nevertheless, that’s the landscape in the UK, and finally, if you are undertaking surrogacy in the UK, often, if it’s the experience of my clients, at least, you’ll need an egg donor.
Egg donation in the UK is also altruistic, like it is in Australia, but egg donors are more readily available and that’s because the regulator, the Human Fertility and Embryology Authority, the HFEA, allows, under regulation, a certain small amount to be paid to egg donors.
We don’t have the same flexibility in Australia and the result is more egg donors are available. Therefore, surrogacy is more readily able to be done in the UK than having to go overseas. If you have any inquiries about UK surrogacy journeys, then I suggest go and talk to a UK surrogacy expert.
I can certainly refer you on to lawyers who specialise in this field, that’s all that they do.But if you have any general inquiries about surrogacy in the UK, get in contact with me and I’ll do what I can to help.