On 19 November 2024, we held our Surrogacy in the UK Seminar with our surrogacy experts Beverley Cullis and Navdip Dhariwal together with Richard Jones from 1GC. Below is an overview of what we covered.
Surrogacy law in the UK
Surrogacy in the UK must be altruistic and commercial surrogacy is prohibited, meaning a surrogate cannot be paid for carrying a child for someone else. As a result of this, it is a criminal offence to arrange commercial surrogacy, which also encompasses advertising for a surrogate or negotiating an agreement relating to surrogacy. Consequently, a solicitor cannot draw up an enforceable surrogacy agreement but they can provide advice and guidance on the process and any agreements which have been drafted.
The Legal Parent(s)
The central pillar to the surrogacy process is the parental order, which transfers the parental responsibility from the surrogate to the intended parent(s).
The criteria to apply for a parental order is contained with s54 of the Human Fertilisation and Embryology Act 2008:
- The child is carried by a woman who is not one of the applicants and one of the intended parents must have a biological link to the child;
- The applicants must be married, in a civil partnership or in an ‘enduring family relationship’. However, from 2019 a single person can make an application;
- The application must be made within 6 months of the birth of the child;
- The child’s home must be with the applicants;
- Either or both of the applicants must be domiciled in the UK;
- The applicants must be over 18;
- The surrogate mother (and her spouse if applicable) must provide their consent, freely given, to the granting of a parental order; and
- Only the reasonable expenses of the surrogate mother are permitted to be paid by the intended parent(s).
There can be various legal complexities with the criteria relating to a parental order application and it is important to seek specialist legal advice before you embark upon your surrogacy journey.
Challenges with Surrogacy in the UK
The same criteria applies to surrogacy arrangements which are within the UK and for those who use international surrogate mothers. There are a number of common issues which arise when the intended parent(s) apply for a parental order, which require specialist legal advice and guidance.
Reasonable expenses
There is no legal definition of what a reasonable expense is, but because surrogacy in the UK is altruistic, a court will analyse the expenses incurred. It is important to keep thorough records and be aware that if an international surrogacy arrangement is entered into, there may be different ideas of how much may be deemed to be reasonable and advice should be sought at an early stage to ensure this criterion is met.
6 month time limit on parental orders
The application for a parental order must be made within 6 months of birth, which can pose difficulty in international cases when immigration issues arise. For international surrogacy arrangements, there are a variety of immigration issues which can arise, and it can take time to resolve these. As a result, there have been some cases considered by judges in the UK where the 6month time limit has elapsed.
It is key to understand any immigration implications in terms of choosing your intentional surrogacy arrangement, to ensure you understand the process to enter the UK and how to comply with the 6 month time limit of applying for the parental order.
Surrogate consent
The surrogate mother must give her consent to the parental order, and the consent must be freely given.
Again, for international surrogacy arrangements, this can pose difficulties either because the surrogate mother cannot be located or due to language difficulties which require documents to be translated to ensure clear and free consent has been given.
In Re WT [2014] EWHC 1303 (Fam) the applicants sought a parental order and the surrogacy arrangement had taken place via a clinic in India. The Judge queried some of the documentation as the documents provided were all in English and signed by the surrogate mother but it was not clear whether she understood the documents she had signed. Attempts to locate the surrogate mother in India were not successful initially, but eventually she was located and she provided her consent to a lawyer in India.
If an international surrogacy arrangement is being considered, it is important to understand if there are any additional steps which may be required to ensure the surrogate mother is able to understand any documentation and freely provide her consent to the parental order being made.
Surrogacy disputes
Sometimes, disputes arise between the surrogate mother and the intended parent(s). It is important to ensure the arrangement is clear from the outset and an agreement is drafted and signed. A solicitor cannot draft an enforceable agreement due to surrogacy being altruistic in the UK, however, they can provide advice and guidance on what should be contained in the agreement, together with any additional steps which may need to be considered.
Things for a surrogate mother and the intended parent(s) to consider include:
- Whether the intended jurisdiction has any exclusions with reference to surrogacy: for example, some jurisdictions do not allow same-sex surrogacy arrangements.
- What jurisdiction the embryo transfer will take place in?
- Where will the surrogate mother live during the pregnancy?
- Where will the child be born and what are the legal arrangements for registering the birth?
- What steps should be taken in the jurisdiction where the child is born to secure the intended parent(s) legal relationship with the child in that jurisdiction?
It is important to speak with a specialist lawyer who can help you to consider the discussions which need to take place between the surrogate mother and the intended parent(s) to ensure everyone is in agreement.
Domicile criteria
It is important to consider if domicile of the intended parent(s) may be an issue, because if the domicile criterion is not met, then a parental order will not be granted.
Alternatives to a Parental Order
If a parental order is not granted or it appears there may be difficulties, there are alternatives which include Adoption or a Children Arrangements Order. The issue is neither reflect the surrogacy journey and may not extinguish the parental responsibility of the surrogate mother.
Surrogacy reform in the United Kingdom
Surrogacy in the UK is the subject of discussions around reform due to the piecemeal way in which it has evolved, meaning the process could be more streamlined for the intended parent(s), surrogate mother and the child.
The Law Commission has undertaken research and has made a number of recommendations, including a new pathway to legal parenthood which would allow the intended parent(s) to be the legal parent(s) from birth and to create more clarity around the payments which are reasonable during the surrogacy process in the UK.
A guide to surrogacy in England and Wales – everything you need to know
How Moore Barlow can help
Moore Barlow has a expert team of surrogacy solicitors who can assist you during your journey to parenthood. It is important to consider whether your surrogacy journey will take place in the UK or internationally, and any implications that may have. Having expert legal advice can help make the process smoother and ensure you are aware of any hurdles you may face from the beginning. Our team would be very happy to discuss your journey further with you.