Your surrogate will keep the baby, won't she?

So many clients tell us that this is the question they are asked when they tell their friends – and even their fertility doctors – that they are considering surrogacy. Is it true? Are surrogacy arrangements in the UK very risky, with the surrogate mother holding all the cards and having an absolute right to keep the baby? Do those who embark on surrogacy arrangements frequently end up with the surrogate mother keeping the child in practice?
It is certainly a widespread belief, and one which in the globalised world is an important factor which drives people abroad to surrogacy destinations like the USA, the Ukraine and India, where surrogacy arrangements are legally enforceable.

But the reality is that this is in fact incredibly rare in practice. To date, there have been only two reported cases in UK legal history of the court having to arbitrate between the intended parents and a surrogate mother where a surrogacy agreement has broken down. In only one of these cases was the surrogate allowed to keep the baby, since the UK courts (far from being obliged to uphold the status of the surrogate mother) in fact have flexible powers to determine what is in the child’s best interests where something does go wrong.

So why do surrogacy arrangements in the UK so rarely go wrong? Our experience of working with families in these situations tells us that it is because surrogacy is not entered into by parents or surrogates lightly, but with the benefit of enormous care, thought and respect. Often with the help and support of long established and experienced agencies like Surrogacy UK and COTS, we find that parents and surrogates invest heavily in building a strong foundation to their relationship, and treat it with significant value.

The reality of surrogacy in the UK is that arrangements far more often end up in a lifelong friendships than in custody disputes