Surrogacy is an increasingly common option for couples and individuals who wish to start a family but are unable to conceive themselves. In fact, according to the Law Commission, the number of children born through surrogacy could be up to 10 times higher than it was a decade ago.
However, while surrogacy is undoubtedly a viable option, there are a number of legal challenges associated with the process and it is therefore vital that you fully understand your legal rights.
Who Can Use Surrogacy?
Surrogacy is a viable option for people who are unable to conceive themselves for various reasons. These can include:
- Recurrent miscarriage
- Repeated failure of IVF treatment
- Premature menopause
- A hysterectomy or abnormal uterus
- Serious risks to health that may arise from pregnancy
- LGBT+ parents wanting to create a family
In the UK, the intended parents are prohibited from paying the surrogate, except for their reasonable expenses, such as time off work, medical bills and living or care expenses. The Surrogacy Arrangements Act 1985 also makes it clear that it is a criminal offence to advertise that you are seeking a surrogate or that you are a potential surrogate.
Who Will be the Child’s Legal Parent?
Legally, parenthood is not determined by biology. The surrogate will be the child’s legal parent after birth, even if the child was conceived using the intended parents’ eggs, sperm or embryos. If the surrogate is married or in a civil partnership, their spouse or civil partner will then be the child’s second parent, unless they do not give permission for this to be the case.
After the child is born, legal parenthood can be transferred by a Parental Order. To apply for a Parental Order, certain strict criteria must be met. The criteria are:
- The intended parent(s) must be over 18 years old
- The surrogate must give consent (no earlier than 6 weeks after the birth of the baby) for the parental order to be granted
- The child must have been conceived artificially and be genetically related to one of the intended parents
- The child must live with the intended parents
- Intended parents must apply for a Parental Order within 6 months of the birth of the child
- At least one of the intended parents must be domiciled in the UK
- The surrogate should be paid no more than reasonable expenses
The Parental Order process involves the family court, as well as a court-appointed social worker.
Can the Surrogate Keep the Baby?
Yes. If the surrogate does not give their consent for a Parental Order, then they will remain the child’s legal parent. However, this does not necessarily mean that this can’t be challenged by the intended parents.
If there is a disagreement over who the child’s legal parents should be, the courts can make a decision based on the best interests of the child. They will be able to determine who should be the child’s legal parents, who should have parental responsibility (the rights and duties to raise the child), and where the child should live.
The child’s living arrangements can be established through a Child Arrangements Order. Like Parental Orders, the court take the welfare of the child into consideration and make a decision in their best interest. They assess various factors such as the child’s physical, emotional and educational needs and the ability of the surrogate (and their spouse or civil partner) to meet the child’s needs.
Evidence compiled from a Surrogacy Agreement may also be used by the family court, which will help them take into consideration both parties’ intentions. However, Surrogacy Agreements are not legally binding and the outcome will ultimately be determined by what is best for the child.
What is a Surrogacy Agreement?
A Surrogacy Agreement sets out the expectations of both the surrogate and the intended parents throughout the surrogacy and following the birth of the child – including the drafting of a Parental Order or adoption papers.
Surrogacy Agreements can be useful for helping to clarify what both parties are expecting from the arrangement. The surrogate and the intended parents can sit down to discuss the practicalities of the surrogacy and resolve any potential disagreements before they escalate during the child’s birth.
In the UK, a surrogacy is not legally binding and cannot be enforced like a normal contract. It must also be noted that, under UK law, third parties (including solicitors) cannot help with the negotiation of a Surrogacy Agreement as there are strict laws preventing surrogacy being for any commercial gain.
Contact Our Fertility Law Solicitors
At Crisp & Co, we have an expert team of surrogacy solicitors who will be able to help you clarify your legal rights and help you overcome any potential disputes that may have arisen from surrogacy.