When do I need a solicitor for a surrogacy arrangement?

When you're looking at ways to build your family, hiring a lawyer is likely the last thing on your mind.  

However, common questions include 'what does a solicitor do within the surrogacy process' and 'when do you need one'?

It's important to understand that exactly what you need a lawyer for and at what stage. This will vary significantly according to where your surrogacy arrangement takes place and what country (or countries) you have links with. 

You should always check what the requirements are in any country that may be relevant to you. and find out how the different laws and procedures gel together, so that you can ensure everything's in the right place and completed at the time right time. 

Here, Cara Nuttall sets out how a solicitor fits into the surrogacy process in England and Wales.

Get legal advice BEFORE entering an arrangement

It's highly advisable to get legal advice before you enter into any surrogacy arrangement. 

This is both to ensure that everything you do is within the scope of what's allowed and the law will apply how you expect it to. You need the right people to be the legal parents and have parental responsibility further down the line.  

If you're using a fertility clinic, it's normal for them to insist that both the intended parent(s) and surrogate are taking independent legal advice before treatment starts. At this stage, the main priority is to understand the legal framework and who has which legal rights throughout the process, while being sure that the intended parent(s) will be eligible for a future parental order.

Contrary to what you might expect, a solicitor can't get involved in negotiating or drafting the surrogacy agreement itself, as this is considered 'commercial activity', which is still prohibited in England and Wales. 

The surrogacy agreement isn't (in itself) legally binding and doesn't attribute parenthood, so it isn't a legally complex document. This is of course very different to many other countries, where the agreement can be binding and part of the legal process. 

Consider Wills and inheritance

You'll also want to consider speaking to a solicitor about Wills and inheritance issues at an early stage so that the adults and baby are protected throughout the duration of the pregnancy and all the way to the parental order. This will enable the right people to inherit and have financial protection, as well as to deal with who would care for the baby in the event of anything unexpected happening.  

If you have any international links or your arrangement is an international arrangement, you should also seek immigration advice, to ensure that everyone can be where they need to be for the birth and afterwards — and that you'll be able to travel home (and remain there).  

Travel documents — even temporary ones — can take some time to get. So, understanding the requirements and process from the start can minimise delay and reduce the risk of unexpected problems arising.  

How long will I need a solicitor for?

In the usual course of events, after the initial planning and preparation stages it won't be necessary to involve a solicitor again until after the baby is born and you're ready to apply for the parental order. Again, in some countries there are important pre-birth legal requirements to deal with. Yet in England and Wales, you can only commence the process for the transfer of legal parenthood after the baby is born.

At this stage, a solicitor can help you to prepare the parental order application and supporting documentation, including witness statements. They can also represent you in the court process. Once the order has been made, your solicitor can help with any passport or citizenship applications and help you to update your Wills to reflect the change of legal status.

While disputes between intended parents and surrogates are rare, they can occur. In the event of any disagreement — especially in relation to who will care for the baby or spend time with them — a solicitor can advise and (where necessary) represent you in that dispute.  

Experts in surrogacy law

Our family law team has many years’ experience in assisting and advising surrogates and intended parents — from straightforward arrangements to situations where complex problems have arisen. 

If you'd like any advice in relation to surrogacy and fertility law, talk to us by completing our contact form below.