The path to parenthood isn’t always straightforward. For many couples and individuals, who can’t or choose not to carry their child, surrogacy is a great option. But, how does it all work?
There are many reasons people can't get pregnant, perhaps they’re dealing with infertility or they’re in a same-sex relationship. Thankfully, surrogacy – when a woman agrees to physically bear a child for another person or a couple – has been an option since the early 2000s. And, there are a couple of ways to go about it…
Legal Director Jennifer Headon, explains: "Surrogacy can be partial or ‘traditional’ surrogacy, or total or ‘gestational’ surrogacy. Partial surrogacy is where the child’s surrogate mother is also the biological mother and the child will also be genetically related to the father, or sperm donor. Total surrogacy is when the child is completely unrelated to the surrogate. The embryo in this scenario is created using either the genetic mother’s egg and genetic father’s sperm, or a donor egg and genetic father’s sperm, or a donor egg and donor sperm."
Surrogacy became legal in the UK in 2008 as part of the Human Fertilisation and Embryology Act 2008 and new research from the University of Kent (co-led with Dr Kirsty Horsey) has found that surrogacy quadrupled in the last 10 years.
There could be many reasons for its increase, namely, seeing celebrities such as Elizabeth Banks, Tan France from Queer Eye, and Chrissy Teigen having babies through a surrogate. Plus, advancements in technology and progressive attitudes towards surrogacy have changed, according to research provider IMARCI.
While some people are still concerned with the ethics of surrogacy, and believe the process can exploit women, there is plenty of evidence to suggest that surrogates expressed substantial satisfaction through the surrogacy process and did not experience psychological challenges due to relinquishing the child, such as the Mothers for Others paper published in the National Library for Medicine.
What it's like to be a surrogate
To give you an insight into what it's like to be a surrogate, we spoke to 37-year-old Kim Bradshaw in 2020 who shared the entire process, from choosing the agency to how she stays in touch with the intended parents now.
"I had a beautiful friend who was told she had cervical cancer, and couldn’t have her own children," she told GoodtoKnow. "I initially wanted to help her, but she lost her battle with cancer. So in memory of her, I wanted to help a couple become a family. It really was that simple for me. My husband Andy was really supportive. He knew that I’d coped well with my own two pregnancies (we have two children of our own) and he felt I was physically and mentally strong enough."
Getting started with the process was easier than she thought. "I searched for a surrogacy agency on Google and found Brilliant Beginnings [a UK-based surrogacy agency] in March 2016. Andy and I had a conversation with the counsellor there, and I also had a medical check to see if I was able to become a surrogate." After that, the process required a home visit from the Brilliant Beginnings staff, a weight check, and police checks for both Kim and Andy and a couple of months later, Kim was matched with a couple.
"Brilliant Beginnings phoned myself and Andy and put us on the phone to our intended parents. We continued to chat, and later set up a WhatsApp group, soon arranging to meet. Just a few days later, our intended parents visited us at our home. I made a cake and we went for a walk around our area, and we all got along really well. A couple of weeks after that, Andy and I visited our intended parents at their home, and we stayed over at their parents' vacant flat for two nights. We went out for dinner and went into town, on an open-top bus tour – it was lovely. After lunch we came back home, and started chatting properly, about our lives; the process – everything."
"My husband and I also had counselling sessions at a London clinic to help prepare us for the journey"
Kim
"We made our wills and also had to have our identification verified," Kim said. "By December, we had completed every aspect of our agreement too. It included how I would care for the baby – no alcohol, for example – and even stated that Andy and I wouldn't risk getting pregnant ourselves, so no sex! In the contract, it also stated that at any point in time if I decided not to carry their baby, then I could change my mind. Andy and I also had counselling sessions at a London clinic to help prepare us for the journey." From then on, Kim's road to becoming a surrogate for the intended parents involved many doctors visits, injections, scans and blood tests. "Then, in March 2017, we headed to London for a transfer. It was quick and comfortable, and the intended parents were able to watch the transfer too. We were given a pregnancy test for 11 days' time."
"The baby's mother recorded a sound clip of herself reading Peter Rabbit, and singing, so I often held that to my belly, so their growing baby could get used to her voice"
Kim
On 11th April, Kim and Andy were invited to the intended mum's parents' house in Petersfield, so they could all do the pregnancy test together. "We were all excited with nerves. I did the test, but handed it to the intended mum and went out to the garden with everyone else, so that she and her mum could share the news, just the two of them." Kim explained. "Within minutes, she came out to say we were one to two weeks pregnant. It was wonderful – there were lots of hugs and congratulations!
"She phoned her partner instantly, and we were all in shock. He texted me later on and explained that he'd got carried away celebrating after he'd returned home that day! He told me they were all over the moon. At 15 weeks, we went for a private scan, and they found out they were expecting a girl. I was told there that my due date was 14th December."
During the pregnancy, Kim and the baby's intended parents had a close bond. "The intended mother came to every appointment, and we all had a WhatsApp group that we used daily. "I just wanted to reassure them and help them have a bond with their unborn child. The baby's mother even recorded a sound clip of herself reading Peter Rabbit, and singing, so I often held that to my belly, so their growing baby could get used to her voice. There was no awkwardness – by that time, we'd built up a good friendship, so we were comfortable saying whatever it was that we felt."
"I had a big cry when it was all over. Until then, I hadn't realised the sense of responsibility that I had carried from beginning to end"
Kim
In the middle of November, Kim left work for three months paid maternity leave, before agreeing to a caesarean section on December 7: "I went to theatre at 8.30am and just like that, the baby was born at 9.37am. My old c-section scar made it hard to get to her, so it was a slow start, but a safe one. "The intended parents were delighted when their daughter was born at 7lb 8oz. It felt natural handing her over – I looked after their baby for them and I knew it wasn’t mine. I didn’t feel bereft, just relieved that we were all fine. The baby was perfect and birth went well. "I admit though, I had a big cry when it was all over. Until then, I hadn't realised the sense of responsibility that I had carried from beginning to end."
In January, the process began to mark the intended parents as the baby's legal guardians – under current surrogacy laws, the surrogate is still legally the guardian of the child until this process is completed. "Would I do it again?" Kim asked herself. "I have no reason to say 'no'. The little girl is two now, and I just think of her as my friend's little girl – they refer to me as Auntie Kim, or tummy mummy! "I'm so pleased I did it, and I really enjoyed the whole process. We always go to her birthdays and the intended parents want me to remain in their life, so it truly was a wonderful experience."
If you're thinking of becoming a surrogate and have some questions, Jennifer is Team Leader of the International Family Law Team at Birketts, and answers everything you need to know around the legalities and technical elements of the process.
What are the legal implications of becoming a surrogate?
There are various legal implications of becoming a surrogate and not all are immediately obvious, says Jennifer.
"For example, it is an offence to advertise your services as a surrogate but surrogacy itself is legal under the Surrogacy Arrangements Act 1985. It is also an offence to advertise to use the services of a surrogate."
Is becoming a surrogate legal in the UK?
It is legal to be a surrogate in England and Wales. However, several laws govern the process, Jennifer explains.
"It is not legal to enter into a commercial surrogacy arrangement, for example, where the surrogate receives payment for her services beyond that of reasonable expenses. Law Commission Guidance published in March 2023 proposed an overhaul of the current system, which is considered by many to be outdated and not fit for purpose. It is recognised in this report that an increasing number of individuals and couples are considering surrogacy as a route to starting a family.
"A surrogacy arrangement will be made before conception and set out how the arrangement is intended to work with all parties to it agreeing the contents and signing it. It is important to note, however, that this is not a legally binding agreement."
Who are the legal parents to the child?
The legal parents to the child is the surrogate upon birth, and if the surrogate is married or in a civil partnership, the spouse will be the child's second legal parent as long as they have given their consent to the arrangement.
"The surrogate is treated as the child’s mother at the time of the birth and that will only change upon an order of the court being made," says Jennifer. It is not possible for the surrogate mother to simply relinquish her parental responsibility or legal parenthood unilaterally, she adds.
"If the surrogate is unmarried or in a civil partnership at the time of the birth, a male intended parent who is genetically related to the child will be considered to be the legal father, but this in itself does not give legal rights in terms of parental responsibility," Jennifer says.
How do the intended parents become the legal parents?
Legal parentage is only transferred to the intended parent(s) upon one of two orders being made by the court:
- Parental order
- Adoption order
These orders can only be applied for after the child is born and results in a permanent transfer of legal parenthood.
"A parental order is applied for if one (or both) of the intended parent(s) has a genetic link to the child, and the child will need to be living with the intended parent(s) at the time when the application is made," explains Jennifer.
"The surrogate (and her spouse or civil partner, if applicable) must give unconditional agreement and must have full understanding of the implications of giving that consent," she continues.
"The agreement is recorded formally on the applicable court form. It is only possible to obtain the surrogate’s agreement (and agreement of her spouse/civil partner) six weeks after the birth of the child. An adoption order is applied for if it is not possible to apply for a parental order, for example, where the child is not genetically related to either intended parent. The process may be more complicated if the surrogacy arrangement was entered into outside of the UK."
Can surrogates be paid for carrying a child?
In England and Wales, there are two types of surrogacy arrangements where the surrogate does not get paid for her services but she may be compensated for reasonable expenses.
There two types of surrogacy arrangements are:
- Commercial surrogacy
- Altruistic surrogacy
"Commercial surrogacy arrangements are legal in other countries and there are a number of countries which have significantly less stringent regulations in place, including India and some US states (such as California and Connecticut), whereas some jurisdictions ban it entirely (such as France and China)," explains Jennifer.
As mentioned, only altruistic surrogacy arrangements are permitted by law in England and Wales. In terms of the reasonable expenses Jennifer referred to above, she says: "It is possible for the court to authorise expenses and confirm the expense is reasonable, including those which have already been incurred."
It is also a criminal offence for an organisation to negotiate or arrange a surrogacy arrangement as a third-party commercial enterprise but permitted if the third-party is an altruistic non-profit organisation – this means it will endeavour to find the best ways to help others.
"Complications may arise if the surrogacy arrangement was entered into in another jurisdiction where commercial surrogacy is legal but the intended parents are seeking to apply for a parental order or adoption order in this jurisdiction, where it is not," Jennifer concludes.
If you need more surrogacy support, there are many resources that will enable you to explore your options and get in touch with services with any questions you have, such as Surrogacy UK, COTS Surrogacy and TwoDads UK.
