Surrogacy is a popular option for single men or women and same sex partners who want to have a child. As part of the arrangement, a woman (the surrogate) gives birth to a child for an individual or couple (the intended parents).
The process helps people to have a child who are unable to conceive, or go through pregnancy, for whatever reason. Once the child is born, legal parenthood is transferred from the surrogate to the person or couple, known as the intended parents.
Surrogacy law is different depending on where in the world you live. There is often confusion about surrogacy law in the UK, with many questioning if the process is in fact legal.
In this article we’ll explore the legalities of surrogacy in the UK, along with other key insights and facts on surrogacy. For immediate legal advice on surrogacy law, get in touch with our surrogacy and fertility law solicitors at Crisp & Co.
Is surrogacy allowed in the UK?
Yes, regardless of common misconceptions, surrogacy is in fact allowed in the UK. Having said this, there are some key restrictions on surrogacy law. For instance, it is illegal for third parties to organise surrogacy for profit. It is also illegal to advertise to find a surrogate, or to promote your services as a surrogate.
Due to these restrictions, the process of finding a surrogate in the UK can be somewhat challenging. If you are considering the option of legal surrogacy, it is advisable to get the support of a solicitor to help you on your journey.
When a surrogate child is born who are the legal parents?
When a surrogate gives birth to a child, they are considered the legal mother, and their spouse/civil partner (if they have one) will be considered the father or second legal parent so long as the surrogate’s spouse/civil partner has consented. To transfer parenthood to the intended parent or parents it is necessary to obtain a parental order via court proceedings.
How do you find a surrogate in the UK?
To find a surrogate in the UK, you can explore one of the following options:
- Through a non-profit surrogacy agency or organisation
- Finding your own surrogate, (without advertising or offering profit, for example, a friend or family member)
Using a non-profit agency is generally the most common option. Individuals and couples who choose this route will go through the following process:
- Finding a surrogacy organisation
- Selecting a surrogate, and a sperm or egg donor if necessary
- Establishing a surrogacy agreement between the surrogate and the intended parents
- Conception processes commence at a fertility clinic
- The surrogate gives birth to the child
- Child’s birth is registered, and birth certificate obtained
- Intended parents make an application for a parental order. Please see our FAQs on Surrogacy for more details on the parental order stages.
- Parental order obtained to transfer legal parenthood status to the intended parents
What is a surrogacy agreement?
A surrogacy agreement refers to a document that establishes the terms of a specific surrogacy arrangement. It should be noted that Solicitors are not able to engage in negotiating or drafting the content of a surrogacy agreement. The agreement is a useful tool in ensuring all involved persons understand their role and obligations to one another.
A surrogacy agreement will usually include details of:
- Which parties are involved, and the different roles that they will play
- Arrangements concerning the conception process
- Information about expenses, for instance, what reasonable expenses will be paid
- The involved parties agreeing to post-birth legal matters, (including the parental order)
Is a surrogacy agreement legally binding?
No, a surrogacy agreement is not legally binding, though it can be useful to establish a plan for the surrogacy and ensure that everyone understands their part to play.
It’s important that all involved parties seek legal advice. Where disputes arise regarding surrogacy, it is essential to have early legal advice or intervention to resolve matters as swiftly as possible.
Why have a surrogacy agreement if it’s not legally binding?
Surrogacy agreements are not legally binding; however, they can be useful to help all parties understand the process and their responsibilities.
If disagreements arise during the surrogacy process it can be useful to have a reference document, stating the terms that have been previously agreed.
If you do face disputes at any stage in the surrogacy process it is important that you seek legal advice to help you remedy these matters.
Why can't you pay a surrogate in the UK?
You cannot pay a surrogate because surrogacy for profit is illegal in the UK. Regardless, you are allowed to pay a surrogate ‘reasonable expenses’.
What counts as reasonable expenses is determined by the Court and usually there is a broad idea of what constitutes as a reasonable expense. Examples of such expenses often include:
- Reimbursement for loss of income (or partners income)
- Pregnancy equipment or medical expenses
- Therapies or classes to assist the pregnancy
- Travel expenses for pregnancy appointments
- Maternity clothing
- Costs for fertility treatment
- Household help while pregnant
Intended parents and surrogates are advised to agree expenses before the process begins. It is recommended that both parties keep a record of such expenses, as this may be needed later when obtaining the parental order.
Our expert solicitors at Crisp & Co have much experience in supporting intended parents and surrogates throughout the necessary processes. If you have any questions about surrogacy in the UK, do not hesitate to get in touch.
What is a parental order in surrogacy?
When a child is born of a surrogate, the surrogate is the child’s legal parent when it is first born. A parental order is later used to transfer parental rights from the surrogate to the intended parents.
The process of obtaining a parental order happens after the child has been born, facilitated by a social worker, a family Court, and the involved parties.
Once the intended parent(s) have been granted a parental order for surrogacy they are then legally recognised as the child’s parent(s). There is an option to apply as an individual parent, or as two parents, with a partner.
To obtain a parental order, certain requirements must be met, including:
- If applying as two parents, you and your partner must be, married, or in a civil partnership, or in an ‘enduring family relationship’
- The child has been artificially conceived
- The child is genetically related to one of the intended parents
- The child needs to be living with the intended parent, and their partner if applicable
- The intended parents must apply for a parental order within six months of the child’s birth
- It is necessary to be permanently living in the UK, Channel Islands, or Isle of Man
What is the process to apply for a parental order?
After the child is born, the intended parent or parents will need to apply to the Family Court to obtain a parental order for surrogacy. To start the process the intended parent must first complete the C51 form which can be found on the GOV.UK website. The surrogate must first consent, and certain legal conditions must be met for the order to be granted.
It is recommended to have the support of a solicitor to guide you through the application process, and help you with any issues should they arise.
What are the key UK laws on surrogacy?
In the UK, legal surrogacy depends on various restrictions, a few of the key laws to consider include:
- It is illegal to promote your services as a surrogate, or publish an advertisement to find a surrogate
- Third parties are not permitted to arrange surrogacy for profit
- The surrogate is automatically the legal parent of the child at birth, as is her civil partner or spouse - if they have previously consented
- After the birth a parental order process must be used to give parental rights to the person/people who will bring up the child
- One of the intended parents must be genetically related to the child, in order to grant a couple legal parent status
How can I have a child through a surrogacy process?
If you would like to have a child through a surrogacy process, you’ll first need to find a non-profit surrogacy agency and start your application.
It is recommended that you seek legal advice early on, helping you to understand the implications of your decision and the processes to follow. You may need assistance negotiating a surrogacy agreement and reasonable expenses.
How our surrogacy solicitors can help
At Crisp and Co, our team of expert solicitors can offer legal advice on surrogacy law. We can support both intended parents and surrogates with any legal matters related to the process.
Our legal service covers:
- General advice on surrogacy law and the processes
- Information on legal parenthood, including your duties as an intended parent or a surrogate
- Obtaining a parental order once the child has been born
- Advice on adoption for those who cannot obtain a parental order, or would prefer the adoption route
Contact our surrogacy solicitors today
For expert advice on surrogacy in the UK, please with our specialist surrogacy solicitors or fill in our online enquiry form for a quick reply.