Payments In Surrogacy Arrangements
The 1st – 7th August marks National Surrogacy Week in England & Wales. Irwin Mitchell’s Fertility Team of Excellence will be posting a series of articles exploring the past, present and future of surrogacy laws. Today our expert, Dan Moreton, explores the current law in relation to payments in surrogacy arrangements.
In the media, we often hear about celebrities using surrogacy as a pathway to parenthood. High-profile figures like Chrissy Teigen, Paris Hilton, and Kim Kardashian have openly shared their surrogacy experiences. However, surrogacy isn’t the reserve of the rich and famous only - it offers a viable pathway to parenthood for many individuals and couples. It is vitally important – whether famous or not – that any individuals or couples embarking on the surrogacy process or those considering whether to be a surrogate are aware of the rules surrounding payments.
The law
It is a criminal offence to carry out commercial surrogacy arrangements in England and Wales. A surrogate will not be able to enforce any agreement for payment and intended parents cannot make a payment to a surrogate for the sole purpose of them carrying the baby.
However, reasonable expenses related to pregnancy and surrogacy are allowed. These expenses undergo court scrutiny during the intended parents’ application for a parental order after the baby’s birth. The court will want to ensure that no undue financial benefit, apart from these reasonable expenses, has been exchanged.
Reasonable expenses
There is no statutory definition of 'reasonable expenses' and the issue has been the subject of case law and academic discussion for many years. It is important that both intended parents and surrogates discuss what expenses would be reasonable with their lawyer to avoid any issues that cause delay, or worse, could prevent the making of a parental order.
Typical payments that are usually deemed as reasonable expenses can include (but are not limited to) the following: -
- Loss of earnings whilst the surrogate cannot work due to the pregnancy,
- Maternity wear for the surrogate,
- Medical expenses and equipment relating to the pregnancy,
- Classes and therapies to support the pregnancy,
- Travel or accommodation relating to the pregnancy, and
- Cost of making a will to protect the surrogate’s family during the process.
However, when assessing whether expenses paid to the surrogate are ‘reasonable’ the court will consider the context in which they are made. What would be deemed as ‘reasonable’ in one case, may not be the case in others.
Even where a payment is considered to be in excess of reasonable expenses, the court may retrospectively approve the payment when considering an application for a parental order.
Legal advice
There are no hard and fast rules regarding payments in surrogacy arrangements. Each case must be scrutinised on its own facts. Understanding what constitutes reasonable payments and the best way to record these payments by discussing this with a lawyer will help prevent issues down the line during applications for a parental order.
Get in touch with Irwin Mitchell’s Fertility Law team if you have any queries regarding surrogacy.
