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How does Surrogacy work in the UK
In the UK, surrogacy is an accessible and relatively affordable method of having a child. However, strict laws mean that surrogacy agreements are not legally binding, so they are greatly based on trust between the surrogate and the intended parents.
If you are considering 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 children-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.
Top 10 surrogacy questions
What is Surrogacy?
Surrogacy is where a woman carries and gives birth to a child for another person, or another couple.
There are two different types of surrogacy arrangement:
Traditional/ Straight Surrogacy: Where the surrogate will be the child’s biological parent. The surrogate’s own egg will be used with the sperm of the intended father.
Gestational Surrogacy:Where the Surrogate has no genetic link to the child. The egg and sperm could be from the Intended Parents, or the child might be conceived with an egg or sperm from a donor.
To obtain a Parental Order, at least one of the Intended Parents must be biologically related to the child.
It is important to remember that in both cases the surrogate will be the child’s legal parent at the time of the child’s birth.
Following the birth, there is a legal process - the parental order process - to transfer legal parenthood from the surrogate to the IP(s).
It is important for the Surrogate and Intended Parents to seek legal advice as to the implications, consequences, and potential issues of entering into a Surrogacy Arrangement, and ideally prior to the fertility journey commencing.
Is Surrogacy Legal in England and Wales?
Altruistic Surrogacy is legal in the UK if the correct procedures are followed, but commercial Surrogacy is not.
It is a criminal offence:
- To advertise that you are looking for a surrogate or willing to act as a surrogate;
- For third parties to advertise that they facilitate surrogacy (although there are some exemptions for not-for-profit organisations);
- For third parties to negotiate the terms of a surrogacy agreement for any payment (for example a solicitor cannot assist with agreeing the terms).
Furthermore, Intended Parents are only allowed to pay the surrogates ‘reasonable expenses.’
If you use a surrogate, they will be the child’s legal parent at birth. If the surrogate is married or in a civil partnership, their spouse or civil partner will be the child’s second parent at birth, unless they did not give their permission. Legal parenthood can be transferred by parental order or adoption after the child is born.
If there is disagreement about who the child’s legal parents should be, the courts will decide based on the best interests of the child.
Often the Intended Parents and Surrogate will enter into a Surrogacy Agreement. Such an agreement is helpful in setting all parties understanding and agreement on a range of issues. A Surrogacy Agreement is a non-legally binding statement of intention about how the arrangement will work and the commitment that each party is making to the other in advance of the surrogacy commencing, to ensure there is effective communication and mutual understanding between the Intended Parents and Surrogate. It is vital to note that a Surrogacy Agreement it is not legally enforceable or binding on the Court in this jurisdiction.
Will Intended Parents be named on the child’s birth certificate?
No matter what the biological position and where the child is born, the surrogate will always be recognised as the legal mother of the child, and if she is married her spouse will be recognised as the child’s legal father/second legal parent.
If your surrogate is single, one of the intended parents may be named on the initial birth certificate but this will depend on a number of factors, including whether your child was conceived at a fertility clinic.
This means that as intended parents will not be fully recognised as your child’s legal parents at birth, and so you will need to apply for a parental order once your child has been born.
What is involved in the Surrogacy Process
- Decide if surrogacy is right for you
- Decide which surrogacy organisation to work with
- Choose a surrogate, and egg or sperm donor if necessary
- Create Embryos
- All parties should seek counselling and legal advice
- Get to know each other and agree a surrogacy arrangement
- Conception (fertility clinic)
- Birth of child
- Assume care of the child following birth
- Registering the birth
- Transfer of legal parenthood by way of Parental Order
- Obtain new birth certificate
- Support child to understand the circumstance of birth
What is a Parental Order?
When a child is born through surrogacy, the Intended Parent should apply to the family court for a parental order.
The parental order transfers legal parenthood from the surrogate (and her spouse or civil partner, if she has one) to the Intended Parents. It can only be made with the surrogate’s consent.
The parental order process takes place after birth and involves the family court, and a court-appointed social worker. Parental order applications are typically heard by magistrates. They will be heard by a High Court judge if the child is born overseas or there are questions over whether the parental order criteria are met.
The vast majority of surrogacy cases in England and Wales are straightforward and it is rare that a parental order to transfer parenthood to the Intended Parents is not considered in the best interests of the child.
The criteria for a parental order are:
- IP(s) must be over 18 years old
- IPs may be married, in a civil partnership or living as partners in an enduring relationship or they can be an individual regardless of relationship status
- the surrogate, and her partner if they are married or in a civil partnership, must give consent (no earlier than 6 weeks after the birth of the baby)
- the child must have been conceived artificially and be genetically related to one of the IPs, or the IP if an individual applicant
- the child must be living with the IP(s)
- IP(s) must apply within 6 months of the birth of the child
- At least one of the IPs in a couple, or the IP if an individual applicant, must be domiciled in the UK
- the surrogate should be paid no more than reasonable expenses, unless authorised by the court
If all the legal criteria are met, the court’s paramount consideration in making the parental order is the child’s lifelong welfare.
An outline of the steps to obtain a parental order:
1. Application to the court by the Intended Parents
IP(s) must submit a completed parental order application form to the court within 6 months of the child’s birth. The court will usually ask IP(s) to submit a statement following the first hearing which can be prepared in advance; this should set out how they fulfil the parental order criteria and provide supporting evidence.
2. Appointment of a Parental Order Reporter by the court
Once the application for a parental order has been made, the court will ask the Children and Family Court Advisory and Support Service (Cafcass in England) to provide a parental order reporter.
3. Work completed by the parental order reporter an report produced
4. Court hearings on the parental order application arranged by the court
The court is responsible for setting the timetable for parental order proceedings. Generally the court will list an initial ‘directions’ hearing to check that the required evidence is available and in order. If there are complications, there may be more than one directions hearing. The final hearing is where the decision regarding the parental order will be made. In some courts, the initial directions may be given in writing so that there is only one court hearing
Can the Surrogate decide to keep the baby?
In England and Wales, the surrogate will continue to be the legal mother of the child until a parental order is obtained. A parental order requires the surrogate’s consent.
This means that at any point up until a parental order is granted, the surrogate could decide to keep the baby.
There is no way of providing a guarantee that the surrogate will give her consent to a parental order. Surrogacy agreements will not be enforceable.
What are the most common overseas countries for Intended Parents living in the UK?
The most common overseas destinations for intended parents who are considering a surrogacy arrangement are the USA, Canada, Ukraine, Greece and Georgia.
If Intended Parents are recognised as the legal parents at the time of the child’s birth in the country of the child’s birth, do I still need a Parental Order?
In many overseas surrogacy destinations, the Intended Parents will be recognised as your baby’s legal parents at birth and in some jurisdictions, even pre-birth. This is not the case under UK law. Irrespective of who is the genetic parents and the laws of the country the child was born, in England and Wales, the surrogate will still be regarded as the legal mother, and if she is married, her spouse as the father or second legal parent.
This means that potentially Intended Parents could have a birth certificate from another jurisdiction naming them as the parents that is not recognised in the jurisdiction of England and Wales.
For Intended Parent/s to be recognised as the legal parents in this jurisdiction, they will need to apply for a parental order.
Intended Parents should make the application for a parental asap. They do not need to wait six weeks to apply (as with domestic surrogacy births) in order to commence the application asap so that the child can return home to England or Wales as soon as possible.
How will the child travel home to the UK after birth?
Arrangements will depend heavily on the country the baby was born.
You will need an Immigration Solicitor with a specialising in Surrogacy to advise and assist in developing a strategy to ensure the baby can return to the UK post birth asap.
We will advise you on the best option for you and can provide guidance on how to secure comprehensive immigration advice.
Can you proceed with surrogacy as a single intended parent?
Single parents who have had a child born through surrogacy can now apply for parental orders and obtain a UK birth certificate.
Until 2019 only couples could apply for a Parental Order.
It is still the case that the single Intended Parents must be genetically related to the child in order to be able to be successful in a Parental Order application.
Surrogacy Not-For-Profit Organisations:
- Surrogacy UK,
- Brilliant Beginnings;
- My Surrogacy Journey
- Donor Concetion network
- Fertility Network (fertilitynetworkuk.org)
- Choose a fertility clinic HFEA
- The surrogacy pathway: surrogacy and the legal process for intended parents and surrogates in England and Wales - GOV.UK (www.gov.uk)
- Surrogacy overseas - GOV.UK (www.gov.uk)
Legal Advice Resources
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
- 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
- Specific Issue Orders
- Prohibited Steps Orders
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).
The legal rights of surrogates and intended parents in the UK
Surrogacy can be a complex area of law because of the legal definition of parenthood and the rights of parents.
What is legal parenthood?
In English law, a child can only have 2 legal parents, who in turn have various rights and responsibilities in respect of the child, 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 can acquire 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 (as well as her partner in certain circumstances), even if she conceived using the eggs and sperm of the intended parents.
Intended parents and legal parenthood
The intended parents are not automatically legal parents of a surrogate child. However, they can become the legal parent of a surrogate child to whom they are genetically related by obtaining a Parental 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.
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.
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 the intended parents are not the child’s biological parents, or it is a single person, they 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.
What are “reasonable 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. This is because under the law, you cannot 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 you are about the payments and the purposes for which they were incurred, the court is more likely to consider them reasonable.
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.
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 surrogacy solicitors
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