Surrogacy, the process where a woman carries and delivers a child for another person or couple, has become an increasingly popular option for those unable to conceive or carry a pregnancy to term. In the UK, altruistic surrogacy is legal but Commercial surrogacy is not.

This article explores the legal framework, types of surrogacy, the process, and the considerations for those thinking about surrogacy in the UK.

Legal framework for surrogacy in the UK

Altruistic surrogacy is legal in the UK, governed by several laws and regulations designed to protect the surrogate, intended parent(s), and the child. The key legislative acts include the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008. These laws outline what is permissible and ensure that surrogacy arrangements are conducted ethically and legally.

Under UK law, commercial surrogacy (where a surrogate is paid more than reasonable expenses) is prohibited. However, altruistic surrogacy, where the surrogate is reimbursed only for reasonable expenses, is allowed. This can have implications for the intended parent(s) using an international surrogacy agency and it is important specialist legal advice is obtained before embarking upon a surrogacy journey.

Beverley Cullis

Beverley Cullis

Senior associate (CILEx) | Family

01483 543214

Helping you through your surrogacy journey

We provide expert advice and support to intended parents, surrogates, or donors throughout the entire process, ensuring that all parties are fully aware of their legal position.

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Types of surrogacy

There are two main types of surrogacy recognised in the UK: traditional surrogacy and gestational surrogacy.

Traditional surrogacy

In traditional surrogacy, the surrogate uses her own egg, making her the biological mother of the child. The egg is fertilised with the sperm of the intended father through artificial insemination.

Gestational surrogacy

Gestational surrogacy involves the implantation of an embryo created using the eggs and sperm of the intended parents or donors. The surrogate has no genetic link to the child in this case, as she is not using her own egg.

The surrogacy process

The surrogacy process in the UK involves several steps, from initial planning to the legal transfer of parental rights. Here is a comprehensive overview of the process:

  1. Finding a surrogate: the intended parent(s) can find a surrogate through surrogacy organisations, online communities, or personal connections. It is essential to ensure that the surrogate is fully informed and consents to the arrangement willingly.
  2. Medical and psychological assessments: Both the surrogate and intended parent(s) undergo thorough medical and psychological evaluations to ensure they are physically and mentally prepared for the surrogacy journey. These assessments help identify any potential issues and ensure the welfare of all parties.
  3. Surrogacy agreement: Although not legally binding in the UK, a surrogacy agreement is a crucial document outlining the intentions, responsibilities, and expectations of both the surrogate and intended parent(s). It covers aspects such as financial arrangements, medical care, and the intended relationship between the parties during and after the pregnancy.
  4. Fertility treatment and embryo transfer: Depending on the type of surrogacy, fertility treatment involves artificial insemination or in vitro fertilisation (IVF). The embryo is transferred to the surrogate’s womb, where she will carry the pregnancy to term.
  5. Pregnancy and birth: Throughout the pregnancy, the surrogate receives medical care and support. Regular communication between the surrogate and the intended parent(s) is encouraged to ensure a positive experience for everyone involved.
  6. Parental order: After the birth, the intended parent(s) must apply for a parental order to become the legal parent(s) of the child. This legal process transfers parental rights from the surrogate to the intended parent(s), ensuring they are recognised as the child’s legal parent(s).

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Legal considerations and requirements

Navigating the legal aspects of surrogacy in the UK can be complex. Here are some key legal considerations and requirements:

Parental rights

Under UK law, the surrogate is the legal mother of the child at birth, regardless of any genetic connection. If the surrogate is married or in a civil partnership, her spouse or civil partner is the legal father or second parent. To transfer parental rights to the intended parent(s), they must apply for a parental order within six months of the child’s birth.

Eligibility for a parental order

To be eligible for a parental order, the intended parent(s) must meet certain criteria, including being at least 18 years old and having the child living with them. At least one of the intended parents must be genetically related to the child.

Reasonable expenses

In the UK, surrogates can only be reimbursed for reasonable expenses incurred during the surrogacy process. This can include costs related to medical care, travel, maternity clothing, and loss of earnings. It is essential to keep detailed records of expenses to ensure transparency and compliance with the law. It is important to consult with a specialist lawyer about what constitutes a reasonable expense, as these are reviewed by a judge before a parental order is granted, to ensure the surrogacy has not taken place on a commercial basis.

International surrogacy

The intended parent(s) considering international surrogacy should be aware of the additional legal complexities involved. Different countries have varying laws and regulations regarding surrogacy, and the intended parent(s) must navigate immigration, citizenship, and parental recognition issues. Legal advice and thorough research are crucial when considering surrogacy abroad.

Ethical and emotional considerations

Surrogacy involves significant ethical and emotional considerations for all parties involved. It is essential to approach surrogacy with sensitivity and respect, recognising the profound impact it can have on everyone’s lives.

Emotional support

Surrogacy can be an emotionally challenging journey for both the surrogate and the intended parent(s). Access to counselling and support services is crucial to help navigate the emotional complexities and ensure the well-being of all parties.

Informed consent

Ensuring that the surrogate fully understands and consents to the surrogacy arrangement is vital. This includes providing comprehensive information about the medical, legal, and emotional aspects of surrogacy. The surrogate must give their consent for the parental order to be granted and it is therefore important to have transparent conversations throughout the surrogacy journey and have a detailed surrogacy agreement covering this area.

Ongoing relationship

The intended parent(s) and surrogate should discuss their expectations regarding the ongoing relationship after the birth, and record this information in their surrogacy agreement. Some surrogates and the intended parent(s) choose to maintain contact and form a lifelong bond, while others may prefer a more limited relationship. Clear communication and mutual respect are essential in determining the nature of this relationship to avoid disputes after the child is born.

Child’s welfare

The welfare of the child should always be the primary consideration in any surrogacy arrangement. This includes ensuring the child’s right to know their origins and have access to information about their surrogate and genetic background.

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Support and resources

Numerous organisations and resources are available to support those considering surrogacy in the UK. These include:

  1. Surrogacy UK: A non-profit organisation that provides support, information, and guidance for surrogates and the intended parent(s). They offer a range of resources, including surrogacy agreements, support groups, and events.
  2. COTS (Childlessness Overcome Through Surrogacy): An organisation that supports individuals and couples seeking surrogacy. They provide guidance on finding a surrogate, navigating the legal process, and accessing emotional support.
  3. Human Fertilisation and Embryology Authority (HFEA): The regulatory body overseeing fertility treatments and clinics in the UK. The HFEA provides information on the legal and ethical aspects of surrogacy and ensures that fertility treatments are conducted safely and ethically.
  4. Legal advice: Consulting with a surrogacy solicitor experienced in family and surrogacy law is crucial to ensure that all legal requirements are met and that the rights and interests of all parties are protected.

How Moore Barlow can help

Surrogacy in the UK is a legal and viable option for individuals and couples looking to build their families.

Understanding the legal framework, types of surrogacy, the surrogacy process, and the ethical considerations is essential for anyone considering this path. With the right support, guidance, and legal advice from expert surrogacy solicitors, surrogacy can be a fulfilling and positive experience, leading to the creation of loving families.

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Helping you through your surrogacy journey

We provide expert advice and support to intended parents, surrogates, or donors throughout the entire process, ensuring that all parties are fully aware of their legal position.

Find out more

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