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 LGBTQIA couples. As long as you are committed to becoming a loving, supportive parent, we are here to help.
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
- 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.