Surrogacy – The Guide

For many couples struggling to have a child, or for same-sex male couples where giving birth to a child is not possible, surrogacy may be the only option.

In this guide, we’ll explain what the law says about surrogacy in the UK and discuss why it’s so important to obtain legal advice before starting the surrogacy process.

What is surrogacy?

Surrogacy is the process of carrying and giving birth to a baby for someone else.

There are two types of surrogacy: gestational surrogacy and traditional surrogacy.

Gestational surrogacy is when embryos are made with an egg from the person not carrying the baby (the egg will come from either the intended parent or a donor) and the sperm of either the other intended parent or a donor.

Therefore, in gestational surrogacy, the child the woman is carrying is not biologically related to her.

Traditional surrogacy involves the woman carrying the baby donating her egg. In this type of surrogacy, she will be the biological mother of the child.

Is surrogacy legal in the UK?

Surrogacy is legal in the UK. However, you are not allowed to pay a surrogate in the UK (although reasonable expenses are permitted).

What’s more, surrogacy rules prohibit anyone from advertising for a surrogate. This means that for those wanting to begin the surrogacy process, finding a surrogate can be difficult.

Who are the child’s legal parents at birth in surrogacy?

When a woman gives birth to a child, she will become that child’s legal parent. Surrogacy makes no difference to this rule.

If the woman is married or in a civil partnership, their partner will become the baby’s other parent at birth (unless they did not give their permission for the surrogacy).

This is the case whether gestational or traditional surrogacy is used. This means that, in theory, the surrogate mother may be able to keep a child to whom they are not genetically related.

Is a surrogacy agreement enforceable by a court?

No, surrogacy agreements are not enforceable in the UK. Surrogacy agreements are not legally binding.

If a court is asked to uphold a surrogacy agreement, their top priority will be to decide what is in the best interests of the child.

Sometimes, a surrogate may decide to keep a child after birth. Legally, they are able to do this as, in the eyes of the law in the UK, they are that child’s mother. A surrogacy agreement cannot stop this from happening.

If the intended father in surrogacy is the child’s biological father, he could potentially challenge the surrogate mother’s care. This could be a lengthy and emotionally draining court battle.

How do we become a child’s legal parents after surrogacy?

After a child has been born through surrogacy, becoming a legal parent to that child would have to be done through a parental order or adoption.

Again, if the surrogate no longer wants you and your partner to be the legal parents of the baby, the court will make its decision based on what is in the child’s best interests.

What is a parental order in surrogacy?

A parental order is a type of court order which the intended parents must apply for if they want to become the legal parents of the child when surrogacy takes place.

It is possible to apply for a parental order as a couple or as an individual. In the case of a couple, at least one party must be genetically related to the child (through the egg or the sperm). In the case of an individual, that person must be genetically related to the child.

There are various other criteria that must be met in order to apply for a parental order after surrogacy. For example, the child must be living with you.

When considering surrogacy, it is important to seek legal advice to ensure that you will be able to apply for a parental order following the child’s birth and, if not, have an alternative plan in place to become the child’s legal parents.

Do I need to adopt a child following surrogacy?

If you or your partner are genetically related to the child, you may be able to pursue a parental order.

If not, the only way to become the child’s legal parent is through adoption.

Could surrogacy law be reformed?

There have been calls for laws surrounding surrogacy in the UK to change.

In June 2019, the Law Commission of England and Wales and the Scottish Law Commission announced that the laws around surrogacy were outdated and “should be improved to better support the child, surrogates and intended parents”. They proposed that the intended parents should become the legal parents when the child is born (rather than the current situation where intended parents must apply to the court for a parental order once the child is born), with the surrogate having a right to object for a short time after the birth.

Can we go abroad for surrogacy?

Each country’s surrogacy laws are different. In some countries, it is possible to make enforceable legal surrogacy contracts.

Before going abroad to enter into a surrogacy agreement, it’s important to understand exactly what the laws are with regards to surrogacy in the country you intend to go to. Failure to seek legal advice to this effect could result in a wide range of problems and stress further down the line. Therefore, seeking legal advice from an experienced surrogacy solicitor, such as Austin Kemp, is vital.

Indeed, it is highly recommended that anyone considering surrogacy within the UK obtain legal advice too, so that they fully understand their rights, their partner’s rights and the rights of the surrogate. This way, a fully informed decision can be made before entering into a surrogacy agreement, at home or abroad.

How can our expert divorce solicitors help you with surrogacy agreements?

Our expert family law solicitors can help you with a range of legal issues relating to surrogacy agreements, including:

• Prenuptial agreements
• Cohabitation agreements
• Post civil partnership agreements
• Divorce
• Domestic violence and harassment
• Child maintenance
• Child contact arrangements
• Divorce financial provisions

Contact our expert divorce solicitors for surrogacy advice

For more information call our divorce solicitors on 0845 862 5001 or email mail@austinkemp.co.uk.

Our expert family law solicitors offer a nationwide service. We have client meeting office facilities available, in order to have face-to-face client meetings / conferences as and when required in:

Leeds Office: Princes Exchange, Princes Square, Leeds, LS1 4BY

Wakefield Office: Market Walk, Wakefield, WF1 1QR

Halifax Office: Old Lane, Halifax, HX3 5WP

Huddersfield Office: Northumberland Street Huddersfield, HD1 1RL

Coventry Office: Warwick Road, Coventry, CV1 2DY

Canary Wharf Office: 25 Canada Square, Canary Wharf, London, E14 5LB

Please contact us for more details.

24th June 2020