Surrogacy Law

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.

What is surrogacy?

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.

What is Surrogacy Law?

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.