Advice for a Traditional Surrogacy Program

My friend has offered to be a surrogate for us. We’re overjoyed about this and we are going to do a traditional surrogacy cycle, using my husband’s sperm and her egg. I was just wondering if you can give me any details on what I need to do before all this happens or whether I can go straight ahead. We are in the United Kingdom. –Janet & Mark

Thanks for the message Janet,

First, to be clear. I don’t recommend traditional surrogacy — it comes with a host of legal and ethical issues. A traditional surrogacy journey uses the surrogate’s own eggs to conceive the baby — so the surrogate is not just the birth mother, but the genetic mother as well. It’s hard to argue in any court how she could be denied full parental rights if she were dispute the surrogacy agreement. (This is especially true in the UK, where the surrogate already is considered the legal mother following the delivery, and can easily make a claim.)

Traditional surrogacy is called “traditional” because it’s been around since biblical times. Biologically speaking, it’s basically your husband and another women having a child out of marriage, and then the woman agreeing to give up her rights for some payment. There’s nothing new about that situation. Bitter legal battles have been fought over the custody of children born out of wedlock since marriage vows were first composed.

If you can’t donate eggs yourself, my first advice is to find a 3rd party egg donor… from a donation agency or a frozen egg bank. That removes so much legal and moral uncertainty in this process. It may cost some money, but it could save you a lifetime of heartache. Certainly an egg donor will “legitimize” your surrogacy procedure in the eyes of the courts and government regulations.

But if you are committed to a traditional surrogacy journey, the first and most important task is to get a written agreement with your surrogate. This is always true, but especially true in a traditional surrogacy procedure. The fact that your friend is both the genetic and birth mother will add legal complications when it comes time for her to give the child over to you and your husband.

In a traditional surrogacy journey, your friend will have all the parental rights and you will not be the mother in either a legal or biological sense when the baby is born. In the United Kingdom, the Parental Order will transfer parental rights to you, but the birth mother must agree to this. There is nothing in UK law that requires her to waive her parental rights or submit to the Parental Order process. She could decide to remain the legal mother, and there is not much you can do about that.

A written contract is evidence of the understanding and intention of both you and the birth mother as you enter the agreement. The agreement is not enforceable, but if the case ever ends up in court, such evidence would be very useful.

An agreement also forces you and your friend to explore all of your expectations during the pregnancy… what is she permitted to do and not do? Some of my Intended Parents have astonishing restrictions on their surrogates. Will she be allowed to work, travel, eat shellfish? What are your obligations to her financially and otherwise? What will be her relationship to the baby after the birth?

You may think you know the answer to these questions… but are you certain your friend is in 100% agreement? Small disagreements can quickly be overblown into major issues. These are all important questions that have torn apart the best of friendships in many cases.

Traditional programs are risky, which is why I don’t recommend or handle them. But make sure you and your family are protected before anything begins.

I hope this is helpful,

Good luck.
— Bill