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Surrogacy Solicitors - Legal advice after your child is born

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Having a child through surrogacy is an exciting and joyful time. But it can also be worrying, relying heavily on trust between you and the surrogate. During this time it can be comforting to have advice about your legal rights as well as some emotional support. You also need a legal expert to secure your parental rights after the child is born. That’s where our friendly, specialist surrogacy solicitors can help.

If you are considering surrogacy or you are having a child through surrogacy, it is essential to consult a family law specialist with experience handling these types of cases to make sure you fully understand your legal rights.

At Crisp & Co, we are a dedicated firm of family lawyers with expertise across a range of complex child-related services, including surrogacy, adoption, artificial insemination, legal parenthood and parental responsibility matters.

We cater to every individual with particular expertise advising LGBT+ couples. As long as you are committed to becoming a loving, supportive parent, we are here to help.

We help individuals and couples have a child through surrogacy, both in the UK and internationally. We can support you through the process, including providing advice if any disputes arise.

Our absolute priority will be to secure the best possible outcome for you and your family.

Book your free initial consultation with our surrogacy solicitors

We can offer a free 1-hour initial consultation to talk about how we can help you.

So, for expert advice, get in touch with our surrogacy solicitors or fill in our online enquiry form for a quick response.

How our surrogacy law solicitors can help

We are a team of family law solicitors specialising in surrogacy and fertility law. We provide advice to both surrogates and people looking to have a child via surrogacy.

Our service includes:

  • General advice about the surrogacy process
  • Advice on the legality of the arrangement and what you can and cannot do as part of your surrogacy arrangements
  • Calculating and arranging the payment of your surrogate’s expenses, such as medical and travel costs
  • Advice on legal parenthood and your rights and responsibilities either as a surrogate or as the intended parents of a surrogate child
  • Applying to court on your behalf for a Parental Order to acquire legal parenthood for a surrogate child
  • Advice on other methods of acquiring legal parenthood, such as adoption
  • Advice on associated matters such as:
    • Parental responsibility
    • Child Arrangements Orders to establish where the child should live and with whom they should have contact

Unfortunately, because surrogacy cannot be used for commercial gain in the UK, we cannot draft your surrogacy agreement or review its terms.

Everything you need to know about surrogacy in the UK

Follow the links below to find out everything you need to know about surrogacy and how we can help:

What is surrogacy?

Surrogacy is when a baby is carried by a woman with the intention of giving the baby to another person or couple after birth and transferring the parentage and legal rights for the child.

Types of surrogacy

Surrogacy can be traditional or gestational.

Traditional surrogacy (also known as ‘straight’, ‘complete’, or ‘genetic gestational’ surrogacy) is where the surrogate mother is also the child's genetic (biological) mother.

Gestational surrogacy (also known as ‘full’, ‘carrier’, ‘IVF’, or ‘host’ surrogacy) is where the woman carrying the child is genetically unrelated to the child. The embryo is instead created from either:

  • A genetic mother's egg and genetic father's (or donor's) sperm.
  • A donor egg and genetic father's sperm.
  • A donor egg and donor sperm.

Is surrogacy legal in the UK?

Surrogacy is legal in the UK but only if it is done altruistically and not for commercial gain. This means that you cannot pay a woman in the UK to carry a child for you (although you may pay their “reasonable expenses” throughout the process).

If you make a surrogacy agreement between the birth mother and the intended parent(s), it will not be legally binding. This means that if someone breaks the agreement, you cannot necessarily go to court to enforce it.

However, surrogacy agreements are still very important to record how the surrogacy should work. See our section on surrogacy agreements below.

There are also legal options if the surrogate goes back on their promise.

Is surrogacy right for you?

Surrogacy may be right for you if:

  • You or your partner have a medical condition that makes getting pregnant and/or giving birth difficult or dangerous
  • You or your partner have already tried in vitro fertilisation (IVF) and it has been unsuccessful
  • You are a single man, or a male same-sex couple and you cannot get pregnant.

Surrogacy is popular with individuals and couples who would like to be genetically related to their child. However, it’s not a requirement that the intended parent(s) provide the sperm, egg or embryo (see types of surrogacy above).

How does surrogacy work?

The basic steps to expanding your family through surrogacy are:

  1. Seek advice about surrogacy to make sure it’s the right option for you, or whether other options such as adoption may be suitable.
  2. Find a surrogate – some people ask a trusted relative or friend, but many people prefer to ask someone they don’t know. Fertility clinics cannot arrange a surrogate for you, but there are other organisations that may be able to help. Make sure you do your research.
  3. Make a surrogacy agreement setting out the terms of your surrogacy.
  4. Proceed with the treatment – this could be via IVF, IUI, ICSI or another kind of artificial insemination (visit our fertility law solicitors page for more information).
  5. Support your surrogate through her pregnancy.
  6. When the baby is born, instruct your surrogacy solicitor to apply to court for a Parental Order to transfer parental rights and responsibility to you. It’s not possible to get this Order before the child has been born.

If you are using a surrogate from another country or a dispute arises, there will likely be extra steps.

The legal rights of surrogates and intended parents in the UK

Surrogacy is legal in the UK, but surrogacy agreements cannot be enforced, and you cannot transfer legal parenthood from the birth mother to the intended parents before the child is born.

Legal parenthood is very complex because it does not necessarily depend on who the child’s biological parents are, but who gave birth to the child.

We’ve explained the importance of legal parenthood below, but we know it can be hard to wrap your head around. If you have any worries or questions, please do not hesitate to get in touch.

What is legal parenthood?

In English law, a child can only have 2 legal parents, who have parental rights and responsibilities, including:

  • The responsibility to financially provide for the child
  • Inheritance rights (your child can automatically inherit from you after you die)

Legal parenthood is not the same as the rights and duties to raise the child (this is called parental responsibility, and more than 2 people have this).

Nor is legal parenthood the same as biological parenthood (although, in most cases, the biological parents are also the legal parents). In surrogacy arrangements, the intended parents are not automatically the legal parents, even though the child may be biologically related to them via donated eggs and/or sperm.

Surrogate mothers and legal parenthood

The woman who carries a child will always automatically be considered a legal parent, even if she conceived the baby using the eggs and sperm of the intended parents.

This means she gets the rights to care and provide for the child, and she’s a very important person in the child’s life.

If the surrogate mother is married or in a civil partnership, her husband or partner will be treated as the father of the child (unless they did not consent to the surrogacy).

Intended parents and legal parenthood

The intended parent (also known as the commissioning parent) is the person who enters into the arrangement with the surrogate mother with the intention that the baby should become their child.

If the intended father has donated sperm, he would be a genetic parent but will not acquire parental responsibility for the child until the relevant order is made. 

The intended parents can become the legal parents of a surrogate child by obtaining a Parental Order or an Adoption Order from court after the child has been born.

What is a surrogacy agreement?

Many people choose to enter into a surrogacy agreement with their surrogate to set out the terms of the surrogacy and ensure everyone involved is on the same page.

However, these agreements are not legally binding and cannot be enforced in court like a normal contract. The purpose of the agreement is more to set out each party’s expectations, such as the expectation that:

  • The intended parents will obtain a Parental Order
  • The surrogate mother will consent to the intended parents becoming the legal parents

Unfortunately, because of the strict laws surrounding surrogacy and commercial gain, we cannot draft your surrogacy agreement on your behalf or review its terms.

We can however assist by providing the following:

  • General advice about the surrogacy process
  • Advice on the legality of the arrangement and what you can and cannot do as part of your surrogacy arrangements
  • Advice on legal parenthood and your rights and responsibilities either as a surrogate or as the intended parents of a surrogate child
  • Applying to court on your behalf for a Parental Order to acquire legal parenthood for a surrogate child
  • Advice on other methods of acquiring legal parenthood, such as Adoption
  • Advice on associated Child Arrangements matters

What is a Parental Order?

A Parental Order is a method of transferring legal parenthood from the surrogate mother (and her partner if they are also a legal parent) to the intended parents.

The surrogate mother and her husband or civil partner must consent to the Parental Order, but she cannot consent until the child is at least 6 weeks old. The intended parents must apply for the Order before the child turns 6 months old, and the child must be living with you.

At least one of the intended parents must be genetically related to the child to get a Parental Order (i.e. they must have donated the egg, embryo and/or sperm). They must also be a couple who are married, in a civil partnership, or living together.

If you are an individual, you can apply for a Parental Order, but you must be genetically related to the child.

If the intended parents are not the child’s biological parents, or you are a single person who is not biologically related to the child, you cannot get a Parental Order. However, if this applies to you, you can apply to adopt the child. To do this, you will need to register with an adoption agency as part of the surrogacy process. We can provide advice about adoption and support and guide you through the entire process.

See our adoption solicitors page for more information.

How to apply for a Parental Order

The process involves filling out the correct court forms and making sure you comply with all the legal requirements (for example, the child must be living with you, and you must reside permanently in the UK, Channel Islands or the Isle of Man).

When making your application, you need to provide the child’s birth certificate and pay a court fee.

The court will set a hearing and provide you with an ‘acknowledgement form’, which you must send to the child’s legal parent(s) (i.e. your surrogate and their partner if they have one).

The surrogate must fill out their own form consenting to the Parental Order.

Our surrogacy lawyers will handle all this process on your behalf, making sure every detail is completed correctly so you obtain legal parenthood as soon as possible.

Parental Orders and parental responsibility

When you get a Parental Order and become the child’s legal parent(s), you will also automatically get parental responsibility.

Parental responsibility covers all the rights you need to raise your child; for example, you can make decisions about the child’s care, schooling, religion and medical treatment (among other things).

What is an Adoption Order?

An Adoption Order is a court order that transfers parental rights and responsibilities to an individual or couple who are not biologically related to the surrogate child (and therefore cannot get a Parental Order).

See our adoption solicitors page for more information.

How much does surrogacy cost?

Surrogacy cannot be used for commercial gain in the UK, so you will not have to pay your surrogate to carry your child. However, you can pay for their expenses.

When the family court decides whether to grant a Parental Order, they will take into account whether any payments have been made to the surrogate, you are not allowed to pay any more than the surrogate’s ‘reasonable expenses’.

Every case is different, so there is no set formula to work out ‘reasonable expenses’. However, such payments might include travel expenses, medical costs, pregnancy equipment, and the cost of maternity clothing.

If the court suspects that any commercial payments have been made, they may refuse to make a Parental Order. However, if you are open and honest about the payments and the purposes for which they were incurred, the court is more likely to consider them reasonable.

Other costs associated with surrogacy include your solicitors’ fees for any legal advice and applying for your Parental Order. There are also court fees to bear in mind.

If you are using an international surrogate, you will likely end up paying more because in some countries, commercial surrogacy is legal. See our international surrogacy section below.

Can a surrogate mother keep the baby?

Surrogacy arrangements are not legally binding, so the surrogate mother can change her mind and keep the baby even if it is not biologically hers.

If the surrogate mother does not give her consent, the court cannot make a Parental Order to transfer legal parenthood to the intended parents.

However, depending on the circumstances, the court may decide the child should live with the intended parents and grant a Child Arrangements Order if it is in the child’s best interests. One factor the court will consider is the ability of the surrogate (and her husband or civil partner) and the intended parents’ abilities to meet the child’s needs.

If you are worried about a surrogacy dispute arising, we can provide practical advice about your options. We’ll do everything possible to secure a positive outcome for you.

International surrogacy

It is legal to become the parent of a child carried by an international surrogate. In many countries, commercial surrogacy is legal, so you may have to pay to get a surrogate child from overseas.

International surrogacy can bring up many difficult questions of parenthood, nationality and immigration. For example, in countries where surrogacy is legal, you may be able to have your name put on the child’s birth certificate in that country. However, this does not necessarily make you the child’s legal parent in English law, nor will the child be a British citizen.

We can provide advice on bringing your child to the UK, including obtaining a Parental Order once the child is living with you in the UK.

Get in touch with our family solicitors for surrogacy legal advice

For expert advice, get in touch with our surrogacy solicitors or fill in our online enquiry form for a quick response.