Commercial Surrogacy Arrangements

4 June 2021

The main difference between altruistic surrogacy and commercial surrogacy is the existence of a commercial agreement binding the surrogate and the intended parent(s). Anyone in the U.K wishing to engage in a commercial surrogacy agreement is permitted to do so, but you are advised to do your research on the countries that offer the best offer and protection for you, so that you are well-informed to make the best decision. With other countries offering commercial surrogacy arrangements then people are free to go abroad to find a surrogate.

The most popular countries for surrogacy arrangements, include United States, Canada, Russia, and Ukraine. In the United States commercial surrogacy is legal in some states and the costs can also vary from state to state, where you could see a difference of between £50,000 and £70,000 approximately, and so you should undertake as much research on these options. However, with the well-established frameworks in place in the United States it is an attractive option for many intended parent(s).

California is arguably one of the recognised states at offering commercial surrogacy, because of its history and framework in this area. California has also become well-established because of several cases which led to the legal reforms in surrogacy. The case of Johnson v Calvert [1993], the surrogate opposed the commissioning parent’s application for a declaration they were the natural parents of the child, with the court finding against the surrogate. In the case of US v Erickson [2011] an attorney pleaded guilty to ‘conspiracy to commit fraud’ and she admitted that she and her co-conspirators had used gestational carriers to create an inventory of unborn babies that they would sell for over 100,000 dollars. As a result of these historical cases the state put in place the appropriate changes to state law, so that protection was offered to all parties involved in a surrogacy arrangement.

If you are considering an international surrogacy arrangement you still need to speak to a surrogacy solicitor in the U.K to ensure that an Order that you achieve in the United States is recognised and endorsed in the making of a Parental Order in the U.K.

How the English courts interpret surrogacy arrangements in the United States is a decision for a family Judge in the U.K. The court in considering the making of such an order will have regard to all the factors set out in s.54 of Human Fertilisation and Embryology Act 2008 and whether they are satisfied and whether the child’s lifelong welfare requires such an order to be made. The family court in the U.K will also have the benefit of the Parental Order Reporter and their report when considering whether the making of such an order would be beneficial for the child’s lifelong welfare.

It is therefore vital that at the early stages of this journey that you do as much research as possible and plan ahead.

Anne-Marie Hamer
Partner - Family
Annie-Marie Hamer is a Partner Solicitor at Spencer West. She specialises in family law, international, finances, private children law, collaborative law, surrogacy, and adoption.