Surrogacy Agreements Explained

Why having the conversation matters, even when the agreement is not legally binding

If you’re considering surrogacy, one of the big questions is what are intended parents and the surrogate expecting.

Questions like:

• Who will be the biological parents?
• How will conception take place?
• What involvement will intended parents have in the pregnancy?
• What are the expectations about what the surrogate will do during pregnancy?
• What will happen at the birth?
• What relationship (if any) will the surrogate have with the family after birth?
• What payments will be made?
• What happens if something goes wrong?

All of this can be included in a surrogacy agreement.

But is a surrogacy agreement legally enforceable? The answer is simple:

No. Surrogacy agreements are not legally binding in England and Wales.

Many people are surprised by this. If the agreement cannot be enforced, what is the point of having one?

In reality, a good surrogacy agreement can be one of the most valuable parts of the entire process. It gives everyone an opportunity to discuss expectations openly, identify potential areas of concern and make sure everyone starts the journey with the same understanding.

At WSP Solicitors, we can advise intended parents and surrogates on how these agreements fit within the wider surrogacy process and what the court would consider them if there was any disagreement later.

Important: WSP provides legal advice and representation. We do not arrange surrogacy arrangements, negotiate surrogacy terms or facilitate matches between intended parents and surrogates.

What Is A Surrogacy Agreement?

A surrogacy agreement is a document that records what the intended parents and surrogate understand and expect from the arrangement. It is usually created before pregnancy begins, but it can be written at any time.

The agreement can cover a wide range of practical, emotional and legal issues so that everyone involved has an opportunity to discuss them in advance.

Although it is not legally binding, it helps create clarity and encourages honest conversations before important decisions need to be made.

Are Surrogacy Agreements Legally Binding?

No. Under the law of England and Wales, surrogacy agreements are not legally enforceable. This means that a court cannot simply enforce the agreement in the same way it might enforce a commercial contract.

However, this does not mean the agreement is irrelevant. The court can still consider a surrogacy agreement as part of the wider picture if issues arise later.

For many families, the conversations which take place while creating the agreement are just as important as the document itself.

Why Have A Surrogacy Agreement In Place?

Many intended parents ask:

“If it isn’t legally binding, why bother?”

There are several good reasons.

A surrogacy agreement provides an opportunity to discuss expectations before emotions become heightened and before decisions need to be made quickly. It allows everyone involved to think carefully about important issues and reduces the risk of misunderstandings later.

Helping everyone involved become clear, comfortable and happy with the arrangement can go a long way towards avoiding problems in the future.

What Should A Surrogacy Agreement Cover?

Every arrangement is different, but common topics include:

Expectations Of Everyone Involved

The agreement can record what each person expects from the arrangement and how they see the journey progressing.

Communication During Pregnancy

It can be helpful to discuss:

• How often updates will be provided.
• How decisions will be communicated.
• How everyone would like to stay in touch.

Relationships After Birth

Some parties wish to maintain ongoing contact after birth while others prefer something different.

Discussing expectations early can help avoid uncertainty later.

Practical Arrangements

The agreement may cover practical matters such as:

• Medical appointments.
• Attendance at scans.
• Birth arrangements.
• Hospital plans.

Expenses

The parties may wish to record their understanding of expenses and how these will be handled throughout the arrangement. This can be particularly useful when preparing for future parental order proceedings.

Can A Court Consider A Surrogacy Agreement?

Yes. Although the agreement is not legally enforceable, the court can still take it into account as part of the wider factual picture.

For example, if questions arise about what everyone originally intended, a written record can be helpful evidence.

There are several several things a court may consider when looking at a surrogacy arrangement, including:

• Whether a surrogacy agreement exists.
• What the agreement says.
• What other evidence exists about everyone’s intentions.
• The overall circumstances of the arrangement.
• The impact of any agreement on the child and what is in the child’s best interests.

This does not mean the agreement guarantees any particular outcome, but it can still be an important document.

What Happens If Circumstances Change?

Life does not always go according to plan. Sometimes relationships evolve during a surrogacy journey. Concerns may arise. Expectations may change.

When this happens, the existence of a well-considered agreement can provide a helpful starting point for discussions.

However, if a dispute develops, the agreement itself will not determine the outcome. The court’s primary concern will always be the welfare and best interests of the child. The court can consider a wide range of factors depending on the circumstances of the case.

Do Surrogacy Agreements Replace A Parental Order?

No. These are completely different things. A surrogacy agreement records intentions and expectations. A parental order is the specialist court order that transfers legal parenthood from the surrogate to the intended parent or parents after the child is born.

Even where a comprehensive surrogacy agreement exists, intended parents will usually still need to apply for a parental order.

For a detailed explanation, read our guide to Parental Orders Explained.

Should Intended Parents And Surrogates Receive Legal Advice?

Many people find it helpful to obtain independent legal advice before beginning a surrogacy journey.

Legal advice can help people understand:

• The current legal framework.
• The limits of surrogacy agreements.
• Future parental order requirements.
• Potential risks and complications.
• The rights and responsibilities of everyone involved.

Having a clear understanding from the outset often helps people feel more confident about moving forward.

Common Myths About Surrogacy Agreements

“Once We Sign The Agreement, Everything Is Legally Guaranteed”

No. Surrogacy agreements are not legally enforceable in England and Wales.

“There Is No Point Having An Agreement”

Not true. Even though they are not binding, agreements can create clarity, encourage communication and provide evidence of intentions.

“The Agreement Replaces A Parental Order”

No. A parental order remains the key legal mechanism for transferring legal parenthood following surrogacy.

“Only Complex Arrangements Need Agreements”

In practice, every surrogacy arrangement would benefit from clear discussions about expectations and future plans.

Related Surrogacy Guides From WSP Solicitors

You may also find these resources helpful:

• Is Surrogacy Legal in the UK?
• Parental Orders Explained
• Surrogate Rights and Intended Parent Rights
• International Surrogacy and Returning to the UK
• Reasonable Expenses in Surrogacy

Speak To A Surrogacy Solicitor

A surrogacy agreement is not about creating a legally binding contract.

It is about helping everyone start the journey with clarity, honesty and shared expectations.

Whether you are an intended parent considering surrogacy or a surrogate wanting to understand your position, we can help you understand how the legal process works and what steps may be right for your circumstances.

We will explain things clearly, answer your questions in plain English and help you move forward with confidence.

Get in touch with our specialist team here to discuss your surrogacy journey and understand your next steps with confidence. Alternatively you can call us on 01453 847200 or request a callback using the form on this page.