Having a child through surrogacy is a life changing and exciting process, and it is a route to parenthood available to both heterosexual and same sex couples, and also single intended parents. There are many legal implications which need to be considered before commencing the process.
What is surrogacy?
Surrogacy is an arrangement where a woman carries and gives birth to a child for another person or couple. The surrogate mother may be biologically related to the child by using her own eggs together with sperm donated by the intended male parent. This is known as traditional surrogacy. Alternatively, a gestational or whole surrogacy uses either an egg donated by the intended mother or donor egg. Either way, for the surrogacy to be valid in England and Wales, there must be a genetic link to one or both of the intended parents.
The surrogacy process
There are many considerations before embarking on the process, including the legal, emotional and practical impact. For example, consideration may need to be given to immigration issues if entering into an arrangement abroad. Not all countries allow surrogacy arrangements to take place outside of their own country, and in some countries, surrogacy is illegal. Other considerations are:
- Deciding where you want to commission the arrangement.
- Deciding whether you want to work with a surrogacy organisation and/or fertility clinic.
- Decide on the identity of the surrogate and type of surrogacy arrangement to be entered into.
- Ensure that all of the necessary forms of agreement are completed, as far as they can be at the outset. However, bear in mind that the formal form of consent used to apply for the parental order cannot be signed by the surrogate until at least six weeks after the child is born.
- Conception of the child and the following maternity care.
- Consideration of reasonable expenses payable to the surrogate. Surrogates cannot be paid for commercial purposes as commercial arrangements are illegal in the UK. However, surrogates can be paid reasonable expenses which are determined on a case by case basis.
- The birth of the child and migration to this jurisdiction, if the surrogacy is commissioned abroad. The single parent, or at least one of the joint parents must be domiciled in the UK, Channel Islands or the Isle of Man at the time of applying for the parental order and when the parental order is made.
- The transfer of legal parenthood by way of a parental order applied for through the court.
Who are the child’s legal parents?
The surrogate will be the child’s legal mother and hold parental responsibility for the child. If the surrogate is married, in a civil partnership or an enduring relationship, her partner will also hold parental responsibility and assume legal parentage.
Transferring parentage
A parental order must be obtained through the court. The Magistrates Court deals with surrogacy arrangements taking place in the UK and international surrogacy arrangements are dealt with through the High Court. A parental order must be applied for after six weeks and within six months of the child’s birth, and the child must be residing with the intended parents at the time of the application and when the order is made.
What is the purpose of the parental order?
The parental order extinguishes the legal parentage of the surrogate mother (and her spouse/civil partner if she has one) and confers this to the intended parent or parents.
How do intended parents apply for a parental order?
Our handy Parental Order application checklist provides a helpful flowchart, detailing the process of applying for a parental order.
Surrogacy agreements
Whilst surrogacy agreements can be helpful for both the intended parent(s) and surrogate to record details of the arrangement and their intentions, it is important to remember that they are not legally binding or enforceable.
A new surrogacy pathway?
On 29 March 2023, a Law Commission surrogacy report was published, recommending changes to current surrogacy laws. Some of those recommendations included, amongst others, the intended parents having legal parentage conferred upon them from the child’s birth (subject to the surrogate withdrawing her consent), providing clarity over what payments intended parents can make to the surrogate and a new surrogacy register which would allow children born by surrogacy to trace their surrogate parent if that parent was on the register. As yet, any changes to the existing legislation is still awaited.
How Moore Barlow can help
At Moore Barlow, we understand the complexities and nuances of surrogacy. Our Family team offers comprehensive surrogacy support and expert guidance through every step of your surrogacy journey.
