“Conceiving using a surrogate mother can be a very emotional and anxious journey. The law on surrogacy is technical and complex and it is therefore vitally important that the Intended Parents and the surrogate mother receive clear advice as to how the law applies to them prior to entering into any agreement or insemination.
Modern surrogacy laws also revolutionised parental rights for unmarried and same sex couples, allowing non-biological parents on a child's birth certificate as a legal parent. As expert surrogacy lawyers, our firm offers specialist surrogacy legal advice, helping couples understand both how the law works and how it will affect your specific circumstances. We explore more common questions below, but if it does not address all of your questions then please contact me or the dedicated team here for more information."
Surrogacy in Canada for UK parents
Canada is a country we have been working with for sometime and we have excellent relationships with the fertility clinics , agencies and lawyers. It’s becoming more popular due to it being more on a par with the UK law and due to its cost effectiveness
We herein provide a basic guide to parent /s considering an arrangement in Canada but strongly recommend you contact us for a no obligation and complimentary meeting.
Canadian surrogacy terms
Surrogacy in Canada is available to UK intended parents and it is legal. The reasons people may choose this jurisdiction is that 1. It permits the arrangement to governed by a legally binding contract ; 2. Its highly regulated ; 3. It’s got real synergy with UK law making harmonisation of the arrangements easier ; and 4. The intended parents names will appear on the birth certificate
This is not all though without restrictions and some risk of which you should be fully aware of. That legally the contract could be overturned by the court because as in the UK the birth mother only gives up her rights post birth. However , in Canada this can be done quickly and is not something we have experienced as an issue as a firm
This like the UK is heavily regulated and advice should be taken on the level of expenses you pay to your surrogate . How much you should pay us something you need to contemplate legally and then written into the legally binding contract with your surrogate. Often these should be capped and carefully planned to fall in line with UK provisions to ensure that you can , upon returning , secure your parental order.
In Canada, it's illegal to pay for the services of a surrogate mother or to purchase human sperm and eggs. Federal law allows only altruistic surrogacy in Canada, which means surrogate mothers cannot be paid more than out-of-pocket expenses.
We are often told that a benefit of Surrogacy in Canada is cost, which can be significantly lower than Agency-managed programs in the USA. However , it should also be noted Agencies are not legally permitted to professionally match surrogates with future parents. Agencies are also not legally permitted to manage the surrogate’s cycle and pregnancy for a fee.
The result is that surrogacy in Canada is possible, but often takes months to find a qualified surrogate. The entire process may be somewhat less straightforward than a US program where a commercial Agency can handle the entire process.
Canadian law is very explicit, and is regulated by Bill C-6 (Assisted Human Reproduction Act). The act explicitly places the following constraints on surrogacy in Canada:
No person shall pay consideration to a female person to be a surrogate mother, offer to pay such consideration or advertise that it will be paid.
No person shall accept consideration for arranging for the services of a surrogate mother, offer to make such an arrangement for consideration or advertise the arranging of such services.
No person shall pay consideration to another person to arrange for the services of a surrogate mother, offer to pay such consideration or advertise the payment of it.
Even though you will receive a birth certificate and passport how you bring your newborn baby home , should be part of your legal strategy.
Parental rights for intended parent/s
Despite securing the birth certificate and passport (which your Canadian lawyer should secure) for your baby upon returning to the UK there are further steps to be taken to secure your parental rights. The parentage for a child born through Canadian surrogacy is not recognised in the UK , which is why you need to apply to the court for a parental order . This is to ensure you are registered as the legal parents under UK law and have all associated rights
For detailed information on applying for a UK parental order please read here
- I have found a surrogate, do I need a formal agreement?
- What if we use a surrogate abroad?
- Am I allowed to pay the surrogate mother?
- As a gay father can my civil partner/husband have parental rights?
- Can I have a surrogacy arrangement if I am single?
- Is it vital that we register within 6 months of the birth?
- Can I protect my surrogate child in my Will?
- I am not based in London, can you still help me?
If you proceed without a surrogacy agreement, known as an informal arrangement, you as the donor or the intended parent can be in a vulnerable position. The likely scenarios that can arise giving justification to a formal process can include: the surrogate deciding to keep the baby herself; refusing to give you contact; playing an active role in the child's upbringing even though she agreed otherwise etc. A formal arrangement sets out all the agreed terms before anything has been done. Although this is not binding or legally enforceable, it will clearly set out your intentions and the family courts are showing some sympathy to these arrangements. Solicitors are not able to draft or negotiate these arrangements for you.
Once the baby is born you will have six months to apply for a Parental Order. When the Parental Order is granted, a new birth certificate will then be issued showing the two intended parents rather than the surrogate mother and you will both acquire all the rights and responsibilities for the child.
The Human Fertilisation and Embryology Act permits couples to have an arrangement with a surrogate mother overseas and it does permit you to acquire parental rights recognised in the UK. However, if you pay the surrogate more than reasonable expenses then you can expect the court to scrutinise your application to ensure no abuse of public policy takes place, before they can grant you the Parental Order.
You are permitted to pay "expenses reasonably incurred", such as compensation for time off work, medical bills and living or care expenses. Anything that can be seen as simply a transactional fee can cause you issues at court in obtaining parental rights. However, recent High Court case law has challenged this and stated that the welfare of the child should take precedence before refusing a Parental Order because of what has been paid.
If you both follow the due process for a Parental Order and apply together, your civil partner/ husband can be recorded on the birth certificate as the other parent and will acquire full parental rights. If done correctly and within 6 months of the baby's birth, the certificate is reissued with these details.
Sadly, even if you are a biological parent the UK can decide not to grant you a parental order and recognise you as the UK legal parent. This can cause you difficulties since the surrogate will retain her legal rights over the child in this instance. If you use a surrogate abroad you may get a birth certificate with you as named parent but sadly in the UK this is not valid and you may face succession and parental responsibility issues. You should seek specialist legal advice to ensure you are fully aware of your rights and the risks.
The six month time limit has recently been reviewed by the President of the Family Division. While reiterating that statute provided a 6 month bar to ensure people made swift applications, where there is a very good reason then there may be scope to apply outside the time. However, it remains the best position to take all possible steps to apply within the six month timeframe to avoid having to complicate your case and rely on the goodwill and case law to protect the intended parent’s rights.
It is very important that as intended parents you update your Wills in case anything goes wrong during the surrogacy arrangements. You should cover the payment of expenses required for the surrogate and appoint guardians in the event of your death. If you can agree this, the surrogate should have a Will appointing you as the intended parents as the baby's guardian. We would also suggest you consider updating life insurance policies.
Yes, we assist families in all parts of the UK and not just London. Although we always love to meet our clients in person, this is not necessary and we can communicate with you on the phone, over Skype and other virtual platforms. We have a range of experience in conducting matters in this way and are fully geared up to provide you with the best possible service, wherever you are based.
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We are surrogacy lawyers covering the City of London, Central London, Tower Hamlets, Islington, Hackney, Richmond up Thames, Kensington & Chelsea, Hammersmith & Fulham, Westminster, Camden, Harrow, Haringey, Southwark, Lambeth, Croydon, Bromley, Bexley, Havering, Redbridge, Waltham Forest, Enfield, Barnet, Hillingdon, Ealing, Hounslow, Greenwich, Lewisham, Wandsworth, Merton, Sutton, Kingston upon Thames, Barking & Dagenham, Newham and Brent.
Also we have and do handle surrogacy outside of London: Surrogacy lawyers for Wales; Cardiff & Swansea and surrounding areas. Surrogacy legal experts in Leeds, York , Manchester, Bristol, Chester, Cheshire, and Birmingham.
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