‘We discuss the pro’s and con’s of many jurisdictions impartially for you to choose’

So where should intended parents start?

Often, the starting point is to consider your jurisdiction. Is this to be in the UK for convenience or will you travel internationally. Every jurisdiction has its unique selling features and obviously issues that you need to consider such as its legal synergy with UK law, costs and availability of surrogates as an example.

Ultimately you can start to look in the UK and see are there surrogates readily available for your journey? It is likely that the UK is going to be the cheapest option as it altruistic meaning that you cannot pay anything more than reasonable expenses to a surrogate for the arrangement.  There will also be minimal travel costs. However, the surrogacy agreement is not legally binding, and the surrogate will have to sign a consent form six weeks following birth along with their spouse or civil partner which can bring concerns. Also a UK solicitor is not permitted to advise you on any draft agreement, even though one is strongly recommended to outline the parties intentions. You must also be aware you are not able to advertise that you require a surrogate, meaning there is a smaller supply of surrogates available.

Jurisdiction – where to choose

 Canada

Intended Parents have a strong legal position for gestational surrogacy in Canada . This is ,like the UK, an altruistic jurisdiction so that only reasonable expenses can be paid and often health insurance is suitably covered for both the surrogate and the child (although read more below as things are changing). The synergy with the UK means that the process to bring your baby back to the UK and obtain a parental order is more streamlined than in other countries.

Surrogacy in Canada – A City Law Firm or watch or podcasts with leading Canadian fertility lawyers

USA 

You may have a shorter time to wait to be matched with a surrogate in countries where you’re able to pay more than reasonable expenses such as the USA. As such many intended parents do consider  some states of the USA and because there is a proven track record of carefully vetting and screening surrogates. The states do vary so you will need to take specific advice by a lawyer that covers that state. Generally there is the benefit that the surrogacy agreement is legally binding so the surrogate’s consent is to some extent guaranteed and only an admin exercise, although you will still need her consent forms signed for the UK parental order. Due to the extensive history and ethos of the USA in many states this is considered a very safe and secure place for surrogacy. Each surrogate undertakes a rigorous screening and selection process so they have a very robust system. As a result of all of these benefits this is however not one of the cheapest options, but cost does need to be weighed up with the certainty provided.

For more information on the entire legal process of a surrogacy arrangement in the USA please click here. Surrogacy in the USA – A City Law Firm

Greece or Ukraine

More recently jurisdictions that have opened up to UK intended parents include Greece and the Ukraine. These are cost-effective jurisdictions but while there is synergy with UK law it is not perfect and there is not the tested case coverage there is available for other countries. As such you do need to speak to local lawyers and UK solicitors to ensure that everything is carefully covered. There are also restrictions on single-parent surrogacy or LGBT intended parents in some jurisdictions and if the child has medical requirements or parents separate during  the process there are additional risks that you need to be aware of and be prepared for. These jurisdictions can work with very careful advice and planning.

For more information please watch our video above and read our case studies. Ukraine is a more complicated jurisdiction but still very much possible with careful preparation.

Georgia

You must be a married heterosexual couple or proven to reside together , you must also display you have a medical reason for surrogacy to be eligible in this jurisdiction. The comparability with other jurisdictions is hard to make as this is a newer area so as to surrogate availability , costs , local advice must be taken , but providers do say vetting and medical screening is robust. UK IP’s , if they qualify , can have a legal surrogacy in Georgia – read our article for far more depth information in this jurisdiction

Who is reputable, who can you trust and what should you be asking them?

Following your choice of jurisdiction you will need to carefully consider the surrogacy agency or surrogate and ensure a full screening process has been undertaken alongside choosing your clinic. Often the surrogacy specialists will have an ecosystem who they can recommend you to as , for example, we all work very closely as a tightknit community to ensure that you only work with the most professional. Be guided by those professionals so you only work with legitimate and trusted partners that do not do so for commission or simply have large marketing budgets to attract you. We work closely with surrogacy and fertility lawyers in all of the jurisdictions carefully discussing your journey before you start to ensure that everything is in place even before you begin.

Read forums for intended parents as often they give an incite into who they have used good and bad points , as well as tips for those starting out. Don’t be afraid to reach out and speak to those that have undertaken this journey , our clients are often happy to share their stories and support others.

Conferences and events where you get to meet the providers , lawyers and former client’s should enable you to see who you feel comfortable with as its not just about the costs and legals , but who you feel you can ask questions of , if something concerns you that you are confident in their support and most importantly you feel in trusted hands.

How do you know for example the lawyer, or the clinic is reputable?

Over the last five years we’ve seen many law firms appear professing to be surrogacy or fertility experts and new clinics in the marketplace. As such with anything, preparation and communication is key. Ask them how many surrogacy arrangements they have actually handled from start to finish; read the testimonials and ask around about them; read their website make sure that everything is clear and concise and it shows genuine experience; have they got any accreditations or awards that support their position; speak to known groups that manage processes like growing families;  also feel free to ask them questions and make sure you trust and have confidence in them fully.

Whilst some firms are larger so do have huge marketing budgets to promote themselves you need to satisfy yourself they actually have the skills and experience ; that you are only paying a fair and competitive price and can they help you if things go wrong even outside the arrangement?

For example , we advise clients on employment rights like maternity and paternity rights. Once an intended parent’s employer sought to stop him taking leave to fly to Canada for the birth of his child, this was promptly resolved by our employment team. This all round experience can prove extremely useful – if you read our case studies you will see why. We can help support you ; ensure your immigration, wills and employment rights are all aligned to give you that all encompassing VIP treatment.

So you have chosen your lawyer, clinic and surrogate now what?

Do your preparation meet with your UK surrogacy solicitor and allow them to liaise immediately with your lawyer in the jurisdiction that the surrogacy will take place. That way we can harmonise your process abroad so that you will have all the UK requirements in hand before you return with your baby.

Let them check any immigration advice that is needed, over and above birth certificates and visa’s but based on your personal circumstances. You may not think you need this , but double check as it is best to know in advance.

Collate the receipts , payments and list the reasonable expenses so this can be easily collated and filed at court for your UK Parental order. Any concerns can then be promptly addressed between the lawyers.

Throughout your lawyers need to be there to answer questions, gather information with the overseas lawyer , and nearer the time have your application and witness statements ready to be filed at the court. That way you get to enjoy the birth and your time as a new parent without the distraction of all the legal work within the first 6 months. The more organised and documented the swifter the process it will be through the court . We always aim to secure rights at a first hearing if the matter is straight forward, but if further clarity is needed such as over spending on reasonable expenses we are also prepared for a second hearing so we make sure this is factored into the arrangements.

How we work 

It will be a clear route plan that we give you, but any bumps on the way we can navigate these with you, so we stay on course. Our comprehensive pack will do everything for you or you simply pay for what you need us for if you choose to undertake any of the work yourselves.

Follow us on social media to hear about our clients journeys , legal updates and news

Also we will next be giving face to face advice and hosting surrogacy clinics at the Growing Families Surrogacy conference in London in October . Come and meet our team , have a free consultation and hear our panel discussions

You need to choose a firm that has experience in surrogacy and in cases where it has gone wrong and been resolved , so you have confidence that they are there to have your back. We have highlighted some of our cases here, not to concern you, as they did all successfully resolve happily, but to prepare you and reassure you

Separation before the baby was born

We have had intended parents separate during the process , before the parental order was issued, which was at the time single-surrogacy was not permitted , but either way the non-biological parent would of lost all parental rights. Yet we argued the court should set a precedent by allowing the parental order application on the basis two homes between parents continued to qualify as it would when any parent separates.

Medical difficulties

Our client had a baby , by a surrogate overseas in the Ukraine, who sadly needed extensive medical and hospital treatment. The intended mother’s husband left her during this period and single parent surrogacy was not allowed in this jurisdiction or the U.K. at that time. As such the mother had no legal right to bring the child home . After our involvement the child was securely bought back to the UK with its mother and an adoption order granted to secure full parental rights. 

UK Surrogate refused to sign parental order & wanted contact

In the UK even if the parties had a contract it is not legally binding and until the baby is born the surrogate cannot sign the parental application form to confer parental rights. In this case despite a contract , following birth the surrogate wanted additional monies which was an issue regarding ‘reasonable expenses’ and then she wanted shared custody and later contact, which was not the original agreement or wish of the intended parents. This was a traumatic and distressing time for the parents involving the court , child services and could of cost them thousands. However, we successfully secured the baby in the home of the intended parents with full custody and parental rights were bestowed upon them.

Intended parent denied leave for the birth of his child overseas 

The non-biological intended parent was told by his employers he was not entitled to any leave as he was not biologically connected to the child, who was to be born in Canada. Our client who was doing the surrogacy arrangement , through us, engaged us to address his employers clear discrimination, and whilst matters became complicated and proceeded to the Tribunal ultimately he was there for the birth of his baby and to bring her home ; he kept his employment during this essential time; and compensation for the discrimination has been and is still being addressed.

Separation after surrogacy

Our intended parents separated following the granting of a parental order and both wanted shared custody of the child. However, one parent needed to move outside the local area which was strongly opposed by the biological parent. After addressing matters , outside of the court room to avoid unnecessary costs and stress, both parents agreed a mutual arrangement . Initially lawyers on the opposing side did not appreciate the parental rights position and insisted the non-biological parent had no legal rights.

This experience as surrogacy lawyers, employment solicitors and litigators means no matter what eventuality comes up we can secure a sensible outcome for our clients.

More details can be found here Surrogacy – What if it goes wrong? – A City Law Firm

The law and perception has drastically changed as well as travel restrictions changing weekly so we appreciate it can be over-whelming and confusing sifting through all the literature on the internet. Surrogacy is one of the most important journeys of your life, choose wisely , where to arrange this and who you have in your team on this journey to support you, is fundamental.

Having well over a decade plus of experience , helping hundreds of Intended Parents ,in this field , we have witnessed many journeys smooth and otherwise. As parents ourselves, we want to ensure that everyone wishing to have a family is given all the support to achieve this.

Modern Families is something we specialise in and have highlight our client’s experiences and our reported cases here not to concern parents ,embarking on this journey, but to highlight, if something does go wrong that it is not the end of the line , people in this community will have your back and nothing is insurmountable. Forewarned is forearmed they say, so you will be ready for anything.

1. Choosing the wrong country?

Often, the starting point is to consider whether to arrange your surrogacy in the UK or overseas. Whilst we appreciate this is largely influenced by the costs, we do need to highlight that some countries whilst closer for flights or are cheaper are not without risks .

Staying in the UK maybe more convenient and cheaper, but it is important to note that surrogacy agreements in the UK are not legally binding . Setting out the entire arrangement in writing at the onset though is still essential , as they can assist later in court to confirm everyone’s intentions should matters not go as planned .

The USA, as an example, is chosen due to readily available surrogates, rigorous screening and the fact that contracts are legally binding.  This gives you a proven and transparent system offering you security with the process. However, in the USA you can pay for surrogacy services, so you need to be careful to take advice as you cannot pay anything more than ‘reasonable expenses’ in the UK and when you return for your parental order this needs to be confirmed and scrutinised. Careful consideration and planning though can overcome this hurdle , it can slightly delay matters and create the need for a second hearing so there maybe cost consequences , but preparation early on can prepare and minimise this.

Other countries that promote surrogacy maybe be illegal for LGBTQ+ parents , not recognise single parents , have additional loop-holes you need to be aware of and are new to this sector so don’t quite have the proven record others do, so professional advisors in that jurisdiction is even more essential.

Canada is more in line with UK rules and has a proven record, the travel restrictions have eased and it less expensive than the USA. However, surrogates may not be as easy to secure as say in the USA, but this is a secure and harmonised jurisdiction for IP’s

Watch our vlogs and read more on this here https://acitylawfirm.com/international-surrogacy-week/

1. Medical care / Insurances  

Do not forget to do your homework on when you will become responsible for your babies medical care/insurance/treatment costs. This varies country to country and even province or state to state. If your child needs to stay in hospital it is not just the costs and who pays/who is covered , but also who has parental rights to consent to medical treatment . Canada has many synergies with the UK and medical treatment was never an issue , but in some provinces this has now changed. Hospitals are now billing for newborn medical costs and as we hear some IPs are now receiving medical bills, which have not been paid. As a result hospitals are more careful and local  lawyers are refusing to do follow up for birth certificates if hospital bills are not paid. Take advice early on as with the appropriate insurances which may not be as expensive as many wrong believe this could be addressed easily in advance.

2. Post birth signatures needed

To obtain a parental order in the UK your surrogate needs to sign a form to relinquish parental rights between 6 weeks post birth and 6 months and if she is married her spouse must also sign this. Vetting / screening and binding contracts takes out the uncertainty of this process and liaising with UK and overseas lawyers to prepare for this can often ensure this is a simple admin excise. However, issues have arose where surrogates have separated or UK surrogates have refused to sign this form . This can potentially be addressed by an adoption order, negotiation or contractual rights being enforced. However, to avoid the stress of this we recommend robust vetting and references hence why choosing a clinic , agent and surrogate with a proven track history and references can be vital

3. Professional advice

We often hear that non-legal parties in the arrangement have told IP’s there is no real need for a parental order or immigration advice. It is essential that IP’s do their own homework and speak to a solicitor in the UK directly as a parental order is required wherever you carry out the surrogacy arrangement if you are returning to the UK . Also immigration isn’t as straight forward as it sounds and we have heard of many horror stories of parents turned back around at UK airports for not having the correct documentation. It can be a swift and reasonably inexpensive process to have a consultation and immigration review so we advise parents not to risk it.

Having the right experienced people on board before you embark on the journey helps you be prepared, get everything right and in place early , saves you delays and money and ultimately if anything goes wrong it can be resolved. Choose wisely ask them what experience they have, read their testimonials , ask about their fees so its all transparent and agreed up front and ultimately we are here to help and support you so make sure that trust and understanding is there for you.

4. Communication directly with your surrogate

Most often an intermediary will find the surrogate and vet them for the IP’s protection , which is strongly supported. However, we also encourage IP’s to open and maintain lines of communication directly with the surrogate throughout the process. This avoids any miscommunications ; helps for future involvement if that is what you would like maybe even a second or third child ; and helps prevent any potential issues at a later stage as the friendship and connection has been forged.

Other Considerations

5. Review your employment contract and staff handbook to understand the rights available to you as an Intended Parent for leave , adoption leave often covers surrogacy leave too, post-birth leave and unpaid parental leave allowances. You should also look at your eligibility for flexible working to assist you.

6. Review your Travel insurance ; life insurance and Wills to make sure you have covered all eventualities for your new born baby and family members

Our Client Case studies

Medical difficulties

Our client sadly had a baby , by a surrogate overseas in the Ukraine, who sadly needed extensive medical and hospital treatment. The intended mother’s husband left her during this period and single parent surrogacy was not allowed in this jurisdiction or the U.K. at that time. As such the mother had no legal right to bring the child home or consent to treatment, she also did not have medical insurance. After our involvement the child was securely bought back to the UK with its mother and an adoption order granted to secure full parental rights. The medical costs and legal costs though was something that was unexpected and unplanned for Re B (Adoption: Surrogacy and Parental Responsibility) 2018 Read more on our site https://acitylawfirm.com/practice-areas/personal/surrogacy/when-surrogacy-goes-wrong/

UK Surrogate refused to sign parental order & wanted contact

Following the babies birth the surrogate wanted additional monies which was an issue regarding ‘reasonable expenses’ and then she wanted shared custody and later contact, which was not the original agreement or wish of the intended parents. There was even a contract to evidence the parties intentions.  This was a traumatic and distressing time for the parents involving the court , child services and could of cost them thousands. However, we successfully secured the baby in the home of the intended parents with full custody and parental rights bestowed upon them. Unreported as sealed by family court

“Thankfully A City Law was with us every step of the way, as intended parents, we needed this:     My partner and I worked with the team in what was a very complex surrogacy dispute where the surrogate initially refused to hand over the child to us. She ended up handing him over after about  2 weeks but then refused consent to a parental order and when we lodged an application for a child arrangement order, the surrogate lodged a counter application for him to live with her. Thus ensued months of stressful litigation, but it was resolved successfully.”

Separation before the baby was born

We have had intended parents separate during the process , before the parental order was issued, which was at the time single-surrogacy was not permitted , but either way the non-biological parent would of lost all legal rights. Yet we argued the court should set a precedent by allowing the parental order application on the basis two homes between parents continued to qualify as it would when any parent separates, we were successful  K and L and N 2019 read more here : https://www.bailii.org/ew/cases/EWFC/HCJ/2019/21.html

“First the successful surrogacy, then assistance with my separation and employment and finally my child custody case. They supported me throughout and were so professional, efficient and caring I could never go anywhere else”

Intended parent denied leave for the birth of his child overseas 

The non-biological intended parent was told by his employers he was not entitled to any leave as he was not biologically connected to the child, who was born in Canada. Our client who was doing the surrogacy arrangement through us, engaged us to address his employer’s clear discrimination, and whilst matters became complicated and proceeded to the Tribunal ultimately he was there for the birth of his baby and to bring her home , he kept his employment during this essential time, and compensation for the discrimination has been and is still being addressed.

Do your preparation meet with your UK surrogacy solicitor and allow them to liaise immediately with your lawyer in the jurisdiction that the surrogacy will take place. That way we can harmonise your process abroad so that you will have all the UK requirements in hand before you return with your baby. Read more about our services here https://acitylawfirm.com/practice-areas/personal/surrogacy/

For more articles or to read our testimonials please read more here https://acitylawfirm.com/all-articles/?tx_category=surrogacy