Surrogacy is back in the spotlight with a woman being sentenced for duping a childless couple into handing over their savings after leading them to believe she would act as a surrogate mother. But what is surrogacy exactly, and what does the law and health professionals say about it? Stuart Arnold reports.

So, what is surrogacy?

IT’S an arrangement in which a woman bears and delivers a child on behalf of another couple who are unable to have a child themselves. There are two types – full surrogacy involves the implantation of an embryo created using either the eggs and sperm of the intended parents and a donated egg fertilised with sperm from the intended father, or an embryo created using donor eggs and sperm. This would involve an in vitro fertilisation (IVF) clinic. There is also partial surrogacy, which takes sperm from the intended father and an egg from the surrogate mother and can take place at home.

What does the law say?

The Surrogacy Arrangements Act 1985 regulates such activities, but it is a hugely complicated area. Surrogacy arrangements are also not legally enforceable in UK courts even if a contract has been signed and the expenses of the surrogate have been paid. The surrogate mother has the legal right to keep the child, even if it is not genetically related to her. She will remain the legal mother of the child unless or until parenthood is transferred to the intended mother through a parental order or adoption after the birth of the child. This is because, in UK law, the woman who gives birth is always treated as the mother.

Is it legal to pay in the UK?

No, commercial surrogacy in the UK is illegal, whether that involves direct payment to the individual concerned or to someone attempting to broker such an arrangement. However, the intended parents are responsible for meeting the “reasonable expenses” of the surrogate, meaning that payment can be made to cover things such as loss of earnings, travel expenses and clothes.

Fees may be paid to a clinic which carries out artificial insemination or IVF procedures.

How do you find a surrogate?

The Human Fertilisation and Embryology Authority (HFEA) suggests the national charity Infertility Network UK as a good starting point. Voluntary organisation Cots provides help, advice and support to surrogates and intended parents. It says it has supported 600 surrogate births up to 2007. Surrogacy UK is another UK-based voluntary organisation that provides information and support for anyone with an interest in surrogacy and brings together potential surrogates and intended parents.

Can surrogates advertise?

No, again under the 1985 act this is illegal.

What does the DoH say?

A Department of Health spokesman says: “It is up to individuals on whether they wish to enter into any surrogacy arrangement. We would strongly advise anyone considering surrogacy to take legal advice before entering into any type of arrangement.”

What does the BMA say?

A spokeswoman for the British Medical Association, which represents doctors, says: “Surrogacy is considered to be an acceptable option of last resort in cases where it is impossible or highly undesirable for medical reasons for the intended mother to carry a child herself.

“Once a surrogate pregnancy has been established, the doctors ethical obligations to the surrogate mother and the child are no different from those owed to any other pregnant woman, although more support may be required.”

According to the BMA doctors, providing IVF treatment or donor insemination as a part of a surrogacy arrangement must have a licence from the HFEA.

What about surrogacy abroad?

International surrogacy is considered to be even more complicated with different countries having different laws on parenthood.

However, there have been a number of examples of couples arranging a surrogate birth abroad. According to the HFEA, intended parents can apply for a parental order, meaning the child becomes legally theirs once it is born, but only if they are living, or domiciled in the UK. Any child born abroad would also require a visa to enter the UK.

Meanwhile, earlier this year High Court Judge Mr Justice Hedley said he was approving commercial surrogacy arrangements made by British couples abroad – outlawed here – since his paramount concern was the welfare of the children involved.

And the first surrogate birth?

This was in 1985 when Kim Cotton, already a mother of two, had a child for an infertile Swedish couple.

Finally, celebrity surrogacies...

Yes, last December, film star Nicole Kidman and her husband, Keith Urban, became parents to a baby daughter, Faith Margaret, who was born to a surrogate mother.

Sir Elton John and partner David Furnish also had a baby son, born via a surrogacy arrangement, on Christmas Day last year.

They said they did not know which of them was the father of Zachary Jackson Levon, both having contributed sperm samples to be mixed with eggs donated anonymously.