Surrogacy laws in the UK – everything you need to know

Surrogacy offers a path to parenthood for many who are unable to conceive or carry a child. However, the legal landscape surrounding surrogacy in the UK is complex and aims to ensure the welfare of all parties involved. We provide a detailed overview of the laws governing surrogacy in the UK, covering key legislative acts, the legal status of surrogacy agreements, parental orders, and the implications for both surrogates and intended parents.

The Human Fertilisation and Embryology Act 1990 and 2008

The Human Fertilisation and Embryology Acts of 1990 and 2008 further refine the legal framework for surrogacy, particularly in relation to parental rights and assisted reproduction technologies.

Key provisions of the Human Fertilisation and Embryology Act 1990

Parental rights

The Act establishes that the surrogate mother is the legal mother of the child at birth, regardless of genetic connection. If the surrogate is married or in a civil partnership, her spouse or partner is considered the legal father or second parent unless they did not consent to the surrogacy arrangement.

Parental orders

To transfer parental rights from the surrogate, and their partner if applicable, to the intended parents, the intended parents must apply for a parental order. This legal process is essential to ensure that the intended parents are recognised as the child’s legal parents in all respects.

Key provisions of the Human Fertilisation and Embryology Act 2008

Extended parental rights

The 2008 Act extends parental rights to include same-sex couples and unmarried couples, allowing them to apply for parental orders. This ensures that a wider range of family structures can be legally recognised.

Legal parenthood in assisted reproduction

The Act clarifies the legal parenthood in cases involving assisted reproduction technologies, such as IVF. It stipulates that the woman who gives birth is the legal mother, and her partner can be recognised as the second parent, if certain conditions are met.

Regulation of fertility clinics

The Act also regulates fertility clinics, ensuring that they adhere to ethical standards and provide accurate information about the legal implications of surrogacy.

Single parent

A remedial order made under section 10 of the Human Rights Act 1998 was made in relation to the Human Fertilisation and Embryology Act 2008, which amends the 2008 Act to allow a single parent to apply for a parental order. This now means single people can choose to create their families via surrogacy and apply for the parental order, which was not possible prior to this change in 2019.

Parental orders

Obtaining a parental order is a crucial step in the surrogacy process, as it transfers legal parenthood from the surrogate to the intended parent(s). The process and requirements for obtaining a parental order are outlined in the Human Fertilisation and Embryology Acts but specialist legal advice should be sought on this process.

Eligibility for a parental order

To be eligible for a parental order, the intended parent(s) must meet specific criteria:

1. Relationship status: The intended parents must be married, in a civil partnership, or living together in an enduring family relationship unless a single parent is applying.
2. Genetic relationship: At least one of the intended parents must be genetically related to the child. This means that either the intended mother or father must be the biological parent of the child.
3. Age requirement: The intended parent(s) must be at least 18 years old.
4. Application timeframe: The application for a parental order must be made within six months of the child’s birth.
5. Child’s residence: The child must be living with the intended parent(s) at the time of the application.
6. Consent: The surrogate and her spouse or civil partner (if applicable) must consent to the parental order freely and without any conditions. Consent cannot be given until at least six weeks after the birth of the child.

The parental order process

The process of obtaining a parental order involves several steps:

1. Application: The intended parent(s) must submit an application to the family court, providing evidence that they meet the eligibility criteria.
2. Court hearing: The court will schedule a hearing to review the application and ensure that all legal requirements are met. The court will consider the welfare of the child as the paramount concern.
3. Parental order reporter: A court-appointed parental order reporter (usually a social worker) will conduct an investigation to assess the circumstances of the surrogacy arrangement and the suitability of the intended parent(s).
4. Final decision: Based on the evidence presented and the report from the parental order reporter, the court will make a final decision. If the court is satisfied that the requirements are met and the order is in the best interests of the child, it will grant the parental order.

The Surrogacy Arrangements Act 1985

The Surrogacy Arrangements Act 1985 is one of the primary pieces of legislation governing surrogacy in the UK. This Act sets out the legal framework for surrogacy arrangements and establishes the boundaries within which surrogacy can be practised.

Key provisions of the Surrogacy Arrangements Act 1985

1. Commercial surrogacy prohibition: The Act prohibits commercial surrogacy arrangements, meaning that surrogates cannot be paid for their services beyond reasonable expenses. This measure aims to prevent the exploitation of surrogates and ensure that surrogacy remains a voluntary and altruistic act.
2. Agencies and advertising: The Act restricts the activities of agencies that facilitate surrogacy arrangements. It is illegal for third parties to advertise or offer services to arrange surrogacy agreements for profit. However, non-profit organisations that provide support and guidance are permitted to operate.
3. Legal status of surrogacy agreements: Surrogacy agreements are not legally binding in the UK. This means that if disputes arise, the terms of the agreement cannot be enforced by law. The intended parent(s) must obtain a parental order to become the legal parents of the child.

How Moore Barlow can help

Surrogacy laws in the UK provide a comprehensive and regulated framework to ensure that surrogacy arrangements are conducted ethically and with the welfare of all parties in mind. The Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Acts of 1990 and 2008 establish clear guidelines for the legality, parental rights, and financial aspects of surrogacy.

While surrogacy offers a valuable option for those unable to conceive or carry a child, navigating the legal landscape can be complex. It is essential for both surrogates and the intended parent(s) to seek independent legal advice, understand their rights and responsibilities, and ensure that all legal requirements are met.

By adhering to the established legal framework and prioritising the welfare of the child, surrogacy can be a positive and fulfilling experience, leading to the creation of loving families.

To learn more about the laws surrounding surrogacy, speak to our surrogacy lawyers.