Surrogacy in Northern Ireland: how does it work?
Wilson Nesbitt experienced Senior Solicitor Shannon McLorie, has compiled a list of surrogacy FAQs for those looking into seeking the help of a surrogate as a way of creating their family.
While Surrogacy can be legally complex and emotionally charged, it is an increasingly necessary and common route to parenthood. Each year the number of parental orders made in Northern Ireland increase, although the number of surrogacy arrangements may be far higher than any of us realise. Whilst change is happening, surrogacy law in the UK remains quite complex. Here’s a list of questions both my team and I are asked very often, which help add clarity to Surrogacy Law in Northern Ireland;
What is surrogacy?
Surrogacy is where a woman carries and gives birth to a child for another person, or couple. There are two different types of surrogacy arrangement:
Traditional surrogacy – the surrogate is artificially inseminated with the intended father or donor’s sperm. The surrogate not only carries the child, but she also donates her egg and as such she is biologically related to the child.
Gestational surrogacy – the surrogate is implanted with an embryo via IVF and therefore she is not biologically related to the child. Often the sperm and egg of the intended parents will be used, which means that the child will be biologically theirs. Donor egg or sperm can be used if this is not possible. It is possible to use donor egg and sperm, but this will impact on your ability to apply for a parental order.
Is surrogacy legal in Northern Ireland?
Surrogacy is legal in Northern Ireland however any arrangements entered into are not enforceable in Law.
There are various rules and regulations which need to be carefully considered. Surrogacy contracts are unenforceable, which means that there must be a great deal of trust between all parties to the arrangement. It is also against the law for a third party (such as a solicitor) to take payment for negotiating a surrogacy contact.
How do I find a surrogate?
There are several non-profit organisations in the UK who can help. The most well-known are Surrogacy UK, Brilliant Beginnings and COTS. It is also not uncommon for family members or friends to offer their help.
What is a surrogacy agreement and are they binding?
A surrogacy agreement (also known as surrogacy arrangements) formally records how intended parents and surrogates want their arrangement to work, providing clarity and a mutual understanding of their respective commitments. However, surrogacy agreements are not enforceable in Northern Ireland (or the UK) and the intended parent(s) will need to apply to the court to become the legal parents of the child.
Is it legal to pay our surrogate?
Contrary to popular belief, it is not illegal to pay a surrogate mother for her services in the UK. However, during the parental order application, the court will need to authorise any payments made over and above the expenses she has reasonably incurred. There is no definition of reasonable expenses, which means the court must decide what is reasonable in each case. The court often takes quite a relaxed approach and there is a history of the High Court approving payments in international cases that more than covers expenses.
Should I seek legal advice?
If you are thinking of entering into a surrogacy agreement, you should get legal advice from a family law solicitor who specialises in the surrogacy process.
The solicitor will help you on your surrogacy journey by guiding you through the legal process:
- legal issues that may arise during the surrogacy process
- reviewing the surrogacy agreement with biological mother
- the parental order process and how to apply
- the documentation and forms you need to prepare
- personal or financial information required
Can the intended parents be named on the child’s birth certificate?
The birth certificate must reflect the legal position at birth. This means that the surrogate will always be named on the birth certificate in the UK. Whether one of the intended parents can be named will depend on whether the surrogate is married/ in a civil partnership and the circumstances surrounding insemination.
What is a Parental Order?
A parental order makes the intended parent(s) of the child the legal parents and it permanently removes the legal parenthood of the surrogate and her spouse. Once the order has been made the birth will be re-registered and the original birth certificate will be sealed and only accessible to the child once they are over 18.
The court process can take between 4-12 months and will usually involve one or two court hearings.
Can the surrogate change her mind and try to keep the baby?
The surrogate remains the legal parent up until a parental order is made. The surrogate’s consent is also required before a parental order can be made. Many intended parents worry about what would happen if the surrogate wanted to keep the baby, but cases of this happening are incredibly low. The surrogate can also be concerned that she may be left holding the baby if the intended parents change their mind, or their circumstances change.
What are the most common overseas surrogacy destinations?
The most popular destinations for surrogacy arrangements abroad are US, Canada, Georgia, Greece and historically include Ukraine. It is important to do extensive research before embarking upon a surrogacy arrangement abroad. Your marital status and gender may dictate the options available to you.
It is important that you ensure that you comply with the law in your country and your destination country.
Parental leave, maternity leave and adoption leave
You may still be entitled to paid holidays, unpaid time and parental leave if you use a surrogate, however the law commonly only gives maternity leave and pay to the host surrogacy mother.
Check whether your employment contract gives you time off for a surrogacy arrangement.
Are there any health risks?
If you are undergoing fertility treatments, there are some risks you should be aware of, you should seek the advice of healthcare professionals to ensure the surrogate’s ability to have a successful pregnancy as well as the health of the donor sperm.
There may be genetically related conditions that you want to consider to ensure the best interests of the child are met.
Get in touch
For more information about Surrogacy, get in touch with Shannon McLorie and our Family Law team using the details below or make an online enquiry | Make an Enquiry