Surrogacy, when a woman carries and gives birth to a baby for another person or couple, is increasingly popular in this country.
But it is essential that all involved know and understand their legal rights before any surrogacy arrangement is entered.
In this article, we will concentrate on the legal position and surrogacy rights of the birth mother, usually referred to as the surrogate.
The most important thing to understand regarding the law as it stands now is that the surrogate birth mother will be the child’s legal parent at birth.
This is so even if the surrogate is not genetically related to the child (i.e., the eggs and sperm used to conceive the child were donated).
And that is not all. If the surrogate is married or in a civil partnership, then their spouse or civil partner will be the child’s second parent at birth unless they did not consent to the treatment. And if the surrogate is single, then the man providing the sperm will automatically be the second legal parent at birth, if he wants to be the father.
It is, however, possible for the surrogate to nominate a second legal parent, for example, the intended mother or non-biological father, provided that the intended second parent consents.
Otherwise, the intended parent or parents can only become legal parents by applying to the court for a parental order. The application must be made within 6 months of the child’s birth, and the applicant or applicants must be genetically related to the child – in other words, be the egg or sperm donor. They must also have the child living with them.
Critically, as per the current surrogacy rights of the birth mother and her partner, if she is married or in a civil partnership, are that she must give consent to the making of a parental order. The consent must be given no earlier than six weeks after the birth of the child, and it must be given freely and unconditionally, with a full understanding of what is involved.
So, the surrogate is effectively in control of the question of who the legal parent of the child is, right up until the making of the parental order, where the surrogacy rights of the birth mother are transferred.
But all of that may be about to change.
As mentioned, the above sets out the law on surrogacy as it stands at present.
However, the law may be changing soon.
On the 29th of March this year, the Law Commission published a report outlining recommendations for a new system to govern surrogacy, which it says, “will work better for children, surrogates, and intended parents.”
The main recommendation is for the creation of a new pathway to legal parenthood for domestic surrogacy arrangements, which will allow intended parents to be legal parents from the birth of the child (provided that certain eligibility conditions are met), rather than having to wait for months to obtain a parental order.
The eligibility conditions include that the surrogate must be at least 21 years old, that the intended parents must be at least 18 years old, that at least one of the intended parents must have a genetic link to the child, and that where there are two intended parents, they must be married, in a civil partnership, or living as partners in an enduring family relationship.
The pathway will be subject to the surrogate having the right to withdraw her consent, from the point of conception until six weeks after the birth of the child. If she withdraws her consent before the birth, she will be the legal parent at birth, but if she withdraws consent within six weeks of the birth the intended parents are legal parents at birth – she must apply for a parental order if she wishes to gain legal parental status instead of the intended parents.
The Government is currently considering the Law Commission’s recommendations, so we don’t yet know whether the law will be changed and, if so, exactly when and how it will be changed.
Ian Walker Family Law & Mediation Solicitors are award-winning family solicitors and are recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce law, child law, and arbitration.
If you require more information on your surrogacy rights as a birth mother and would like further advice, please visit the FAQ’s Surrogacy Law section or contact the team to speak to one of our specialist solicitors.
Many people who wish to have children are unable to do so with their partner, or may not even have a partner. For such people surrogacy is an option for them to fulfil their wish.
Two common scenarios where surrogacy may be appropriate are where a woman is unable to get pregnant due to a medical condition, and where a male same-sex couple want to have a family.
But what exactly is surrogacy?
Surrogacy is where a woman (the ‘surrogate mother’) carries and gives birth to a baby for another person or couple (the ‘intended parents’). After the birth the child is handed over to the intended parents.
There are two types of surrogacy: host surrogacy (also known as full, total or gestational surrogacy), when the eggs of the intended mother or a donor are used and there is therefore no genetic connection between the baby and the surrogate mother; and straight surrogacy (also known as partial or traditional surrogacy), where the surrogate mother’s egg is fertilised with the sperm of the intended father.
The surrogate mother may be a friend or family member, or may have no connection to the intended parents.
When a surrogacy arrangement is agreed the intended parents and the surrogate mother may wish to formalise the agreement by entering into a surrogacy contract. It should be noted, however, that surrogacy contracts are not enforceable under our law. Accordingly, if the surrogate mother were to change her mind, there is nothing that the intended parents can do to force her to keep to the contract.
It should also be noted that it is illegal to pay a surrogate mother in the UK, save for her reasonable expenses such as travel expenses, medical expenses, and loss of earnings.
So far as the legal position is concerned, the most important thing to understand is that when the child is born the surrogate mother is treated as the child’s legal mother, even if she is not genetically related to the child.
And if the surrogate mother is married or in a civil partnership, her partner will automatically be the second legal parent, unless they did not give their permission for the surrogacy arrangement.
If the surrogate mother is single, then the man providing the sperm will automatically be the second legal parent at birth, assuming he wants to be the father.
Otherwise, the way for the intended parents to become the legal parents is for them to apply to the court under section 54 of the Human Fertilisation and Embryology Act 2008 for a parental order, which will transfer legal parenthood to the intended parents.
If the application for a parental order is made by two applicants at least one of them must be genetically related to the child; they must be married, civil partners or living as partners in an enduring family relationship; and the child must be living with them.
If the application is made by one applicant they must be genetically related to the child, and the child must be living with them.
The application for a parental order must be made within six months of the child’s birth. The surrogate mother and anyone else who is a parent of the child must have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order (the surrogate mother’s consent must be given at least six weeks after the child’s birth).
Lastly, if neither of the applicants is related to the child then the only way they can become legal parents is by adopting the child. Obviously, that is a quite different process from applying for a parental order.
The above is just a brief overview of the law on surrogacy. For information about surrogacy and how we may be able to support you, visit this page.
Ian Walker Family Law & Mediation Solicitors are award-winning family solicitors and are recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce, child law, and arbitration. For expert advice, please contact the team.
