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Surrogacy is when one woman (the surrogate) carries and gives birth to a baby for the couple who want to have a child (the commissioning parents.)
The law in relation to surrogacy arrangements in the UK is complicated and we recommend that you seek legal advice before going ahead.
Whether you intend to be the surrogate mother or the commissioning parent, you need to know your rights. Surrogacy arrangements do not always go to plan, and the repercussions can be distressing for all involved.
We can advise you before and during the process to ensure every step of your journey is safe, ethical, and feels right for you. We can also advise in the event that things do not go to plan.
What is Surrogacy?
Surrogacy involves a woman bearing and delivering a child for another individual or couple. There are two primary surrogacy methods:
Traditional Surrogacy: In this approach, the surrogate is artificially inseminated with sperm from the intended father or a donor. As the surrogate contributes her egg in this process, she shares a biological connection with the child.
Gestational Surrogacy: Here, an embryo is transferred to the surrogate using IVF techniques. As a result, the surrogate has no genetic link to the child. The embryo is often created using the egg and sperm from the intended parents, ensuring the child is genetically related to them. However, if necessary, donor egg or sperm can be utilised.
Using both donor egg and sperm is an option, but it's important to note that doing so might influence your eligibility for a parental order.
Is Surrogacy legal?
Yes. In the UK, surrogacy arrangements have always been legally possible. Nevertheless, there are specific guidelines and regulations that must be observed.
As surrogacy agreements are not legally binding, it's important to ensure trust amongst all parties involved to keep the agreement, both in handing over the child and handling costs.
Additionally, it's prohibited by law for a third party, including professionals like solicitors, to negotiate a surrogacy contract for payment.
Is a surrogacy agreement legally binding?
Surrogacy agreements are not legally binding. At first, the child's legal parents will be the surrogate and her partner. After birth, the intended parent/s must apply to the court (with everyone's consent) to become the child's legal parents.
Can I pay a surrogate?
Paying a UK surrogate mother is not illegal.
However, when applying for a parental order, any payment given to the surrogate beyond her actual costs will need court approval.
What counts as "actual or reasonable costs" isn't clearly defined, so the court decides on a case-by-case basis as part of your Parental Order application.
Historically, the High Court has been flexible, even approving payments in international cases that go beyond just covering expenses.
Can the child's intended parents be listed on the birth certificate?
In the UK, the surrogate mother will always be recognised as the child's legal mother, irrespective of her genetic connection to the child.
If the surrogate is in a marriage or civil partnership, her spouse or partner might be recognised as the child's legal father or second parent in specific situations.
This isn't the intended purpose of a surrogacy agreement.
If the surrogate is unmarried or not in a civil partnership, there's flexibility concerning the identification of the second parent. Without any signed HFEA parenthood documentation, (Human Fertilisation and Embryology Authority), the biological father will assume the role of the legal father. However, if the surrogacy process is facilitated through an HFEA-accredited clinic, another individual, often the non-biological father or intended mother, can be nominated as the other legal parent.
The key to resolving this is through a Parental Order. This order shifts parental responsibility and legal recognition from the surrogate (and her spouse or partner, if applicable) to the intended parents. The child's birth will be re-registered, and a new birth certificate that lists the intended parents as the child's official parents will be issued.
What is a parental order?
A parental order changes the legal parents of the child to the hopeful parent(s) and takes away the legal parent status from the surrogate and her partner.
After getting this order, the child's birth record will be updated, and the first birth certificate will be kept private, sealed away, only for the child to see when they turn 18.
The process in court can last from 4 to 12 months, typically needing 1 or 2 hearings in the court.
Our family law solicitors can help and support you at each stage of the journey. From drafting your application to securing the consent of your surrogate mother and ensuring all rules are adhered to, we'll accompany you to hearings and prepare all the necessary documentation the court needs.
Can a surrogate keep the baby?
The surrogate needs to give consent for a parental order to be made and is the legal parent until the court approves a parental order.
Many hopeful parents fear the surrogate might want to keep the baby, but this rarely happens. On the other hand, the surrogate might worry that the hopeful parents could back out or face situations that change their decision.
Which countries are most popular for surrogacy abroad?
The top countries people often choose for surrogacy include the US, Canada, Georgia, Greece, and in the past, Ukraine. Before starting surrogacy in another country, it's vital to thoroughly research. Your relationship status and gender might limit your choices.
Make sure to follow the laws of both the UK and the country you're considering.
If my name is on the birth certificate or post-birth order from another country, will the UK see me as the legal parent?
No, it's not that straightforward. Surrogacy law isn't universally recognised. So, even if another country sees you as the child's legal parents, the UK typically considers the surrogate, and possibly her spouse, as the child's legal parents. This distinction makes it essential to apply for a Parental Order once you're back in the UK to secure your parental rights.
For further details contact Richard Westley on 01827 317070 or family@pickerings-solicitors.com
