A guide to surrogacy in England and Wales – everything you need to know

Surrogacy is increasingly becoming an option for starting a family for people who are unable to conceive a child themselves. Having a child through surrogacy is life-changing, rewarding and also a legally complicated process.

Our expert lawyers work with and support prospective parents through their own personal journey, whether that be advising on a proposed surrogacy arrangement through a registered clinic, assisting clients with the process of applying for a parental order, to a transfer of legal parenthood once the child is born. We also assist prospective parents deal with the intricacies of an international surrogacy arrangement.

Before entering into a surrogacy arrangement, you need to be aware of the legal position. Surrogacy is legal in England and Wales, however, surrogacy arrangements are not enforceable in law.

What is surrogacy?

Surrogacy is the process by which a child is carried through pregnancy by a woman (“the surrogate”) with the intention of transferring parental responsibility at birth to someone else, known as the intended parent(s).

What is the process for surrogacy?

If you are considering having a child through surrogacy in England, Wales or abroad, then there are many considerations, including the legal, emotional and practical arrangements that will need to be made. For example, consideration may need to be given to immigration issues if entering into an arrangement abroad.

It is important to consider all of these factors so that there is a smooth transition for your child, once born, to be legally recognised as your own child and for whom you will have full parental responsibility.

There are many steps to surrogacy, and you can benefit from having expert legal advice from the outset and along the way.  In brief, the framework for surrogacy usually includes the following stages:

• Decide where you want to commission the surrogacy arrangement and consider any immigration and legal issues with that particular country.  Surrogacy is not legal in all jurisdictions.
• Decide on whether you wish to work with a surrogacy organisation and/or fertility clinic and if so, which one.  This can sometimes help the process run more smoothly.
• Decide on a surrogate and what type of surrogacy i.e., traditional or gestational.
• Complete all the necessary forms of consent, and a surrogacy agreement if this assists. If you are working with a fertility clinic, they will normally prepare the necessary consent documents for you.  It is important to take legal advice upon them before signing.
• Conception of the child and the following maternity care.
• Consideration of reasonable expenses payable to the surrogate.
• The birth of the child and migration if surrogacy is commissioned abroad.
• The transfer of legal parenthood by way of a parental order applied for through the family court.

Why may you wish to consider surrogacy and enter a surrogacy arrangement?

There are many reasons why intended parents may turn to surrogacy:

• You may wish to consider a surrogacy arrangement if you are a couple with infertility issues, such as a medical condition that makes it impossible or dangerous for you get pregnant and give birth.
• You may be a LGBTQ+ couple wishing to create a family.

Since 3 January 2019, single people can also apply to become legal parents of children conceived through surrogacy.

Who is genetically related to a child conceived by surrogacy?

This will be dependent on the type of surrogacy that you select. There are two types:

Traditional surrogacy: The child is genetically related to the surrogate as she provides her own eggs to achieve the pregnancy and usually the intended father, is heterosexual or is a male in a same- sex relationship, or an individual, who provides a sperm sample for conception, i.e. sperm donor.

Gestational surrogacy: The child is not genetically related to the surrogate as she does not provide her own eggs to achieve the pregnancy but is instead a “gestational parent” who carries an embryo created from:

• A genetic mother’s egg and genetic father’s (or donor’s) sperm;
• A donor egg and genetic father’s sperm, where the intended mother cannot use her own eggs or the intended parents are a same-sex male couple.

Who is the legal parent of the child conceived through surrogacy in England?

For both types of surrogacy, the legal system in England and Wales treats the surrogate mother as the child’s legal mother. If the surrogate is married or in civil partnership at the time of conception or embryo transfer, her husband/civil partner will be treated as the child’s legal father/parent, even if the surrogate and her husband/civil partner has no biological link to the child.

This also applies if the child is born abroad and the commissioning intended parent(s)’ name appears on the foreign birth certificate instead of the surrogate. Notwithstanding, surrogates generally prefer not to be referred to as the mother or parent of the child.

How do I become the legal parent to a child conceived through surrogacy?

You will need to apply for a Parental Order through the Courts. The Parental order, if successfully obtained, has the power to permanently extinguish the parenthood of the surrogate mother and her spouse/civil partner and is considered the optimum legal and psychological solution for a child born through surrogacy.

What is a Parental Order?

A parental order transfers parental responsibility from the surrogate parent(s), to the intended parent(s), the effect is that the child is for all purposes treated as their child and not the child of any other person. The parental order process takes place after birth and involves the family court, and a court- appointed social worker, referred to as the “parental order reporter”. The application is made through the Magistrates Court for domestic arrangements (those based in England and Wales) and the High Court for international arrangements or where there are questions over whether the parental order criteria, which we set out below, are met.

Parental Order criteria

The Court must be satisfied that the Parental Order is in the child’s best interest. There are strict criteria and time scales which must be adhered to when applying for a parental order, as set out below:

• The parental order must be applied for within six months of the child’s birth and the child must be living with the intended parent(s) at the time the application is made.
• The surrogate mother’s (and her spouse/civil partner) must give their formal agreement to the application for a parental order and that agreement must be obtained not less than six weeks after the birth.
• The intended parent(s) must be over 18.
• At least one of the intended parents must be domiciled in England and Wales.
• There must be a biological connection to at least one of the intended parents, if it is a couple, or to the intended parent if one.
• If there are two intended parents, there must be evidence of a relationship between them.
• Only the reasonable expenses of the surrogate mother are permitted to be paid by the intended parent(s), and evidence may be required. A commercial surrogacy arrangement is not permitted.

Provided all of the legal criteria have been met, the parental order reporter will recommend that the parental order is made and the court’s paramount consideration in making the parental order is the child’s lifelong welfare. It would not be unusual for the judge allocated to the case to invite the intended parent(s) to bring the child with them to the final hearing as this is seen a celebratory occasion where photographs may also be taken.

Why do I need a Parental Order?

In the absence of a parental order and/or legal advice, intended parent(s) may not be the child’s legal parents in England and Wales unless parenthood is obtained through another method, such as adoption. A surrogate cannot simply “surrender” her parental responsibility or legal status as a parent. The legal process has to be undertaken to confer that legal status on the intended parent/parents.

Failure to apply and secure a parental order can have drastic consequences on the child and the intended parents, for example:

• You may not have the authority to make decisions about your child’s education and medical requirements.
• You may need to find and involve the surrogate in future decisions involving your child.
• You may not be able to travel abroad with your child as the child may not automatically inherit your nationality status on birth
• You may face legal complications should you separate or divorce
• You may face legal issues should you want your child to inherit or receive a benefit under your pension in years to come.

How can I find a surrogate in England and Wales?

It is a criminal offence for commercial organisations to match or broker surrogacy arrangements in England and Wales and it is a criminal offence to advertise that you are looking for a surrogate, or wiling to act as a surrogate. It is also a crime for third parties to receive payment(s) for arranging surrogacy, however, this does not apply to non-profit surrogacy agencies.

It is generally not recommended that those considering surrogacy do so independently but there is some non-profit surrogacy organisations allowed to operate in England and Wales. However, due to the clear restrictions above there are more parents seeking surrogacy services than surrogates available in England and Wales. This has resulted in many intended parents looking abroad where there may be a less restrictive regulatory regime given the prohibition on commercial surrogacy within England and Wales.

What are my surrogacy options outside of England and Wales?

Different countries around the world take different approaches to surrogacy. There are many countries that prohibit surrogacy like Germany, Italy and France, where it is illegal. Surrogacy was previously popular but is currently outlawed for foreign intended parents in countries such as India and Thailand.

There are some destinations which have historically been popular international surrogacy destinations for British resident intended parents, like USA and Canada. These countries offer a supportive legal framework, have greater availability of surrogates and do not prohibit payment but the average costs of surrogacy in these countries tends to be high. In some of these jurisdictions, there are laws where the intended parents can seek orders before the birth, and thus become the child’s legal parent(s) before it is born. This will not, however, change the legal position of the intended parent(s) or the surrogate in England and Wales and does not act as a substitute for a parental order in England and Wales.

We will work with your foreign surrogacy specialists and advisers to ensure your rights are protected and to ensure you are recognised as the legal parents of your child in England and Wales.

What do prospective parents need to consider?

There are currently no internationally recognised laws for surrogacy.

The intergovernmental body, Hague Conference on Private International Law is currently looking into the possibility of forming internationally agreed rules for authorities to recognise the parenthood of children born abroad through surrogacy, and to set out consistent rules. However, it may be challenging to reach international agreement due to the differing views towards surrogacy worldwide. It is, therefore, paramount to plan ahead and be guided by a specialist surrogacy solicitor to avoid any pitfalls that may arise due to the inconsistency of laws around the world. Application for parental orders require careful preparation and we will work with you to achieve successful outcomes.

There are many important factors to consider in whether a surrogacy arrangement is to take place in England and Wales or abroad.  For example:

• If this is an international surrogacy arrangement, is it legal?
• Are there any immigration and nationality issues or any issues around your ability to bring the child into England and Wales after birth?
• Who will the child’s legal parents be?
• Are surrogacy arrangements legal in that country?

Why choose our surrogacy lawyers?

At Moore Barlow, our surrogacy team have the skill and expertise to navigate the highly complex legal landscape of surrogacy. With a deep and compassionate understanding of the legal issues, our team is equipped to provide expert advice and guidance throughout the entire process, with the utmost sensitivity and discretion.

We can also signpost intended parents to organisations offering support or assistance as they go through this journey and can also discuss your options should surrogacy not be an available option for you. In addition, we can advise you about other considerations during this process such as obtaining updated birth certificates, parental leave as well as working closely with our preferred advisors who can assist you manage any immigration issues you may encounter.

We have offices in London, Richmond, Southampton, Guildford, Lymington and Woking and offer expert family law advice to clients nationwide. If you want to know more about the support we can offer to those planning to become a family or add to their family through surrogacy, please do not hesitate to contact us.