What is a surrogacy agreement?

Some commissioning parents and surrogate parents enter into what is known as a surrogacy agreement. This is an agreement which sets out all parties expectations throughout the surrogacy and following the birth of a child, including the making of the parental order.

Is it legally binding?

No, in the UK, a surrogacy agreement is not legally binding on any party to the surrogacy and cannot be enforced like a normal contract.

All parties to the surrogacy must freely consent to the parental order being made and that consent can be withdrawn at any time up to the point that the parental order has been made. If the relationship breaks down, the surrogate mother cannot be forced to hand legal parentage of the child over to the commissioning parents nor indeed can the commissioning parents be forced to apply for legal parentage of the child.

A legally binding agreement forcing somebody to do something at some time in the future is therefore contrary to the cornerstone of a parental order that all parties freely consent to the order being made.

What is the point of a surrogacy agreement?

Whilst a surrogacy agreement is not legally binding, it is still useful to have one. By drafting a surrogacy agreement, the parties to the surrogacy have a chance to sit together and talk through the practicalities of the surrogacy. It allows all parties to discuss and note down what they are expecting to happen. Through these discussions, it may be that different parties have different expectations about their involvement in the child’s life or in the practicalities of the surrogacy. By drafting a surrogacy agreement, these issues come to the surface and the parties can decide whether to go ahead with the proposed surrogacy arrangement or look at different options.

Furthermore, if there are problems and disagreements in the future, it can be useful to have evidence of what the parties understood the situation to be and their intentions. The court may take into consideration the parties’ intention when deciding how to deal with the disagreement.

Can you help me draft a surrogacy agreement?

No. In the UK, solicitors are not allowed to draft the surrogacy agreement. This is due to strict laws preventing surrogacy from being for commercial gain. This does not prohibit the parties themselves from reaching an agreement but we would be unable to review its terms or make suggestions to it. Certain “not-for-profit” organisations may be able to compile some information to assist with the preparation of the surrogacy agreement but they are not allowed to negotiate the agreement for you.