Q – My partner and I are currently considering having a child through a surrogacy arrangement, as we are unable to have children ourselves. Fortunately, a friend of ours has agreed to act as a surrogate and we have started discussing what should happen. Do we need a contract?

A – Surrogacy arrangements have been allowed in the UK since 1985 with the condition that it cannot be carried out as a commercial exercise by the surrogate who is therefore unable to charge, or take a fee, for their service.

You can make arrangements to cover the surrogate’s reasonable expenses and this, along with other important matters, should be discussed and agreed between you in advance to avoid any risk of their being a disagreement or falling out further down the line. The detail of the arrangement can then be set out in a written agreement (often referred to as a surrogacy agreement).

Whilst surrogacy agreements are not enforceable in the United Kingdom, given the often delicate nature of surrogacy arrangements, it is recommended that there is a written record of your agreements regardless.

Following the birth of the child, your friend (and her partner, if she is married or in a civil partnership), will continue to be the parents of the child until you apply to the court for their parentage to be transferred to you and your partner.

It is essential that, after the birth of the child, you and your partner, take the necessary steps to transfer parentage to yourselves. If you, or your partner, are the sperm or egg donor, you will need to apply for a Parental Order; if not, then you will need to apply to the court for Adoption. The application for a Parental Order must be made within 6 months of the child’s birth.

If you required any further information, or advice, in relation to Surrogacy Agreements and/or Parental Orders please free to contact our team by email at family@berrysmith.com or by telephone on 02920 345511.