The General Unenforceability of Surrogacy Arrangements

Are Surrogacy Arrangements Necessary?

The first legal aspect in any surrogacy process is the surrogacy arrangement. The surrogacy arrangement basically documents the understanding between the parties – that the Surrogate agrees to try to become pregnant and the child born from that pregnancy is then transferred to the Intended Parents.

We’ve previously touched on the requirements of a surrogacy arrangement but in a nutshell, in order for a surrogacy arrangement to be in accordance with the Surrogacy Act 2010, it must encompass the following:

  • The surrogacy arrangement must be in writing;
  • The surrogacy arrangement must not be a commercial surrogacy arrangement;
  • The surrogacy arrangement must be a pre-conception surrogacy arrangement.

As you can see, the list is not very long and nor are the requirements burdensome. In fact, the main point to keep in mind about the requirements of a surrogacy arrangements is set out in section 6 of the Surrogacy Act 2010:

6 Enforcement
(a) A surrogacy arrangement is not enforceable.

(b) However, an obligation under a surrogacy arrangement to pay or reimburse the birth mother’s surrogacy costs is enforceable but only if the surrogacy arrangement is a pre-conception surrogacy arrangement.

What is the point of a Surrogacy Arrangement then?

Well, firstly, legislation requires the surrogacy arrangement to be in writing so regardless of how long or short, detailed or generic your surrogacy arrangement is, it needs to be in a written form.

Secondly, like any other agreement, the surrogacy arrangement essentially documents the understanding between the parties to the arrangement. So, even though the nature of the surrogacy arrangement is altruistic and based on the goodwill and good intentions of the parties, it’s good for this understanding between the parties to be recorded so that everyone is “on the same page”.

Due to the non-binding nature of the surrogacy arrangement and the minimal legislative requirements, there are some Intended Parents who choose to prepare the document themselves while others have opted to engage a lawyer to assist them with the process. There really is no right or wrong way, it just depends on what you feel comfortable with.

Our team has experience with both drafting surrogacy arrangement and reviewing surrogacy arrangements that have been prepared by the parties. If you need assistance with your surrogacy arrangement, please do get in touch, our team would gladly assist in any way we can.

Surrogacy Enquiry

For more information on our surrogacy services and quotes on our professional fees, please contact us or visit our quoting page. One of our experienced surrogacy lawyers would be more than happy to get in touch to see how we can best assist you along your journey.