How to avoid disputes in surrogacy

Surrogacy offers a transformative opportunity to individuals and couples to begin or grow their families. However, surrogacy is a complex process and so understanding the potential challenges and implementing measures to prevent disputes is essential to ensure a smooth surrogacy journey.
Below are crucial points in the surrogacy process where disputes may occur, along with strategies to help prevent them:
Prior to conception and pregnancy
- Intended parents and surrogates should obtain their own expert legal advice, separate to one another, prior to and throughout the surrogacy journey.
- While not legally binding or enforceable a detailed surrogacy agreement between the surrogate and intended parents can be useful to make intentions clear, ensure everyone is well-informed and improve communication.Surrogacy agreements can include information such as how many embryo transfers will take place, who will attend hospital appointments, the location of birth and the immediate steps post-birth.
- It is important that intended parents and surrogates work with a reputable surrogacy agency or clinic.
- Ensure that the conception process is clear and agreed – whether conception happens through IVF treatment with the intended parents’ own egg and sperm or whether the surrogate’s eggs are used with the intended father’s sperm.
Fertility Counselling before, during and after the process
- The counselling process provides all parties with an understanding of their motivations, addresses possible emotional considerations such as attachment or isolation, and prepares them for post-birth arrangements. Topics covered can include emotional preparation, expectations, potential challenges, effects on families, post-birth arrangements, and available support systems.
During the pregnancy and prior to the birth of the child
- Only reasonable expenses incurred by the surrogate during pregnancy can be paid to the surrogate – to avoid disputes it is important to ensure that all expenses are recorded carefully, evidenced and justified throughout the pregnancy.
- Ensure that clear communication and protocols for handing medical decisions in are in place to avoid conflicts arising during pregnancy.
Once the child is born and before the Parental Order has been granted
- At the time of birth, the surrogate will always be a legal parent. The intended parents must apply for the Parental Order granting full parental rights.
- To minimise the chances of a dispute arising when applying for a Parental Order the following must be complied with, as set out in the Human Fertilisation and Embryology Act:
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- The child has been carried by a woman other than the intended mother;
- The child is genetically related to at least one of the intended parents;
- If the intended parents are applying as a couple they must be married, civil partners, or living as partners in an enduring relationship. Single parents do not have to meet any relationship criteria;
- The intended parents must be over 18 when the order is made;
- The surrogate and her husband/civil partner (if she has one) must freely and unconditionally consent to the making of the Order. Consent is only valid when given six weeks after the child is born;
- The intended parents must apply for the Parental Order before the child is aged six months;
- No money, other than reasonable expenses, must have been paid to the surrogate;
- At the time of the application and the Order, the intended parents must be domiciled in the UK;
- At the time of the application and the Order, the child must be living with the intended parents.
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After the Parental Order has been made
The intended parents may wish to stay in touch with their surrogate and provide her with updates and photographs, but it is important that everyone is clear about expectations and boundaries.
Do not leave your surrogacy journey to chance – ultimately, ensuring each party seeks expert legal advice at every stage of the surrogacy process can ensure that issues are addressed early, unnecessary conflict is prevented, and surrogacy is a joyous occasion for all parties involved.