Nicola Scott
Consultant Solicitor
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Date Published:07 May 2020 Last Updated:23 Jun 2021

How is Coronavirus affecting UK surrogacy arrangements?

Fertility Law

Following the Health Secretary’s announcement that fertility clinics in the UK may be able to start offering treatment again from today, planned surrogacy arrangements which had been put on hold will be able to resume. Significantly, Matt Hancock acknowledged how “time sensitive and important” the provision of fertility treatment is, with the creation of new life being just as important as saving existing ones.

But for those intended parents whose surrogates are currently pregnant, the impact of the social distancing requirements has meant that they have had to re-think their role and involvement in the pregnancy.

For many of us over the past few weeks, technology has been the lockdown saviour in ensuring the lines of communication remain open between our families, friends and colleagues. For intended parents particularly, the ability to virtually attend antenatal appointments, scans and be present for important pregnancy milestones by way of video calling has been invaluable.

However, many prospective parents are understandably frustrated about their inability to travel to visit and physically support their surrogate mother. On top of this, the uncertainty associated with how restrictions will impact upon birth and the immediate care of the child has provided unnecessary stress and anxiety at a time which should be filled with joy and anticipation.

Hospital policy as to surrogacy varies widely across the country, with some hospitals having an inclusive approach for intended parents at and just after birth and others taking a more cautionary position. The effects of the restrictions at hospitals, due to Covid-19, on surrogate births are similarly disparate. We have seen surrogates forced to care for babies in the (unavoidable) absence of the intended parents and other situations where surrogates are discharged in favour of an intended parent who is then admitted to care for the baby until he or she is ready for discharge.

Although UK law provides that the surrogate is the mother and has legal responsibility for the child she carries, it is usual practice for her to hand the baby to the intended parents from birth to enable them to care for him or her. The intended parents can then engage in the legal process to transfer parentage from the surrogate to themselves; the parental order.

Apart from missing crucial early bonding time and development, one main concern about the current social restrictions is that until the intended parents have care of their child, they cannot initiate the parental order process. There are calls to create a nationwide policy as to surrogacy, if the current restrictions are not relaxed over the coming weeks. In the meantime, intended parents are urged to keep in contact with their delivery hospital to determine their existing policy so that they are able to plan and prepare for the birth accordingly in this unprecedented time.

Read more information about the re-opening of fertility clinics here.

We offer a specialist Fertility service and can advise on surrogacy, if you have any concerns about your surrogacy arrangement or would like to know more about the legal aspects of surrogacy, please contact us.