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Our surrogacy solicitors understand the complexities and sensitivities involved in surrogacy arrangements.
We provide expert legal advice and support to intended parents, surrogates, or donors throughout the entire process, ensuring that all parties are fully aware of their legal position. Our team has extensive experience in navigating the law surrounding surrogacy in the UK, including advising and assisting those parents looking to source a surrogate abroad, and we are committed to helping our clients achieve their desired outcomes with compassion and professionalism.
Having a child through surrogacy is a life-changing and exciting process. There are many legal implications that need to be considered. First and foremost, currently a surrogate (and their partner if they have one) will be the child’s legal parents until the legal parenthood and parental responsibility is transferred to you by way of a parental order after the child is born.
It is therefore important to know your rights from the very outset so that you can be sure that surrogacy is right for you. In some circumstances, you may wish to enter into a surrogacy agreement in order to outline how your arrangement will work.
We as surrogacy solicitors can help you to fully understand the surrogacy process and be fully prepared while embarking on this special journey.
What is surrogacy?
Surrogacy is an arrangement where a woman carries and gives birth to a child for another person or couple. The couple can be heterosexual or same sex. The surrogate mother may be biologically related to the child by use of her eggs (traditional surrogacy) or use an egg donated by the intended mother (gestational).
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.
What is a surrogacy agreement?
This document can sometimes be helpful to intended parents and surrogates planning on embarking upon an arrangement outside of a fertility clinic or surrogacy organisation. However, it is important to remember that surrogacy agreements are not legally binding in the UK and are therefore not enforceable. Whilst it can be a useful document designed to set out each party’s intention, if there are any consequences arising from the agreement, recourse is through the family court. Also, as specialist lawyers, we can provide general advice regarding the arrangement and act in relation to applying for a parental order but unlike some jurisdictions, we are unable to become involved in drafting or advising on a surrogacy agreement.
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What is a parental order?
For a child born via surrogacy to be legally considered the child of the intended parents, and for parental responsibility to transfer to the intended parents, they must apply for a parental order. There are strict criteria and time frames that must be met for a parental order to be granted. Preparing an application and providing the correct evidence is therefore essential. Taking early legal advice can ensure that there are no unforeseen delays or obstacles.
Why choose our surrogacy solicitors?
At Moore Barlow, our surrogacy team have the skill and expertise for anyone looking to navigate the complex legal landscape of surrogacy. With a deep and compassionate understanding of the legal issues surrounding surrogacy, our team is equipped to provide expert advice and guidance throughout the entire process.
How can our surrogacy solicitors help?
The team of surrogacy solicitors at Moore Barlow are highly experienced in navigating the complex legal landscape surrounding surrogacy arrangements. We can help you understand your rights and responsibilities as a surrogate or intended parent, ensure that all necessary legal agreements are in place, and provide ongoing support throughout the surrogacy process. With our guidance, you can feel confident that your surrogacy journey will be as smooth and stress-free as possible.
We have offices in:
Guildford, London, Lymington, Richmond, Southampton, and Woking.
Offering expert family law advice to clients nationwide. If you want to know more about the support we can offer to those planning to add to their family through surrogacy, please contact us.
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FAQs: Surrogacy and donor
What is surrogacy?
Surrogacy is when a woman carries a baby through pregnancy for someone else. In some cases, the surrogate might carry a child that is biologically their child (i.e. their egg was inseminated) and sometimes the egg might come from a donor or from a woman who is later to become the child’s legal parent.
In the UK, the surrogate (i.e. the woman who carries the baby) is considered the legal parent of the child unless the court grants a parental order to someone else, even if the surrogate is not genetically related to the baby i.e. if her egg was not used. A parental order means that the surrogate will no longer have any rights, responsibilities or obligations to the child.
Is surrogacy legal in the UK?
Surrogacy is legal in the UK, but it is a complex area of law and it’s important to take expert advice from surrogacy solicitors before either using a surrogate or agreeing to become a surrogate. This way, you can ensure that you’re fully aware of the legal complexities of this kind of situation and make an informed decision about your next steps.
Who are the child’s legal parents?
In the first instance, the child’s legal mother will always be the gestational parent who will also be named on the birth certificate. This is the mother who carries the child to birth therefore an egg donor will not be the child’s legal parent. In the first instance, the child’s legal father will be the biological father but they will only be named on the birth certificate under certain circumstances.
How do I become the child’s legal parent if I want to use a surrogate?
A parental order must be obtained. This extinguishes the legal parentage of the surrogate mother and instead the applicant assumes the status of the child’s legal parent. The child must be living with the applicant in the UK, Channel Islands or Isle of Man and the parental order must be applied for within 6 months of the child’s birth
What is a parental order?
A parental order is the only legally binding way in the UK at present for the intended parent(s) of the child born through surrogacy to become the legal parent(s) and for the surrogate to have no further rights or responsibilities to the child. Only a court can grant a parental order.
Can I get a parental order if I am single?
Parental orders used to be limited to those that were married, in a civil partnership or in an enduring relationship. The laws changed in January 2019 allowing single people to also apply for a parental order.
Do I still need a parental order if I commission a surrogacy abroad?
Yes, a parental order is still necessary if you want to be recognised as the child’s parent in the UK rather than the surrogate mother regardless of the laws of the country where the surrogacy arrangement took place.
What is a surrogacy agreement?
A surrogacy agreement may be drawn up and entered into by the commissioning parents and surrogate parents before, during and even after the child is born. It sets out all the parties’ intentions and expectations and can include issues such as the making of a parental order, the financial obligations towards the child, the surrogate’s relationship with the child and how the child will be brought up.
Why should I get a surrogacy agreement?
A surrogacy agreement may be drawn up and entered into by the commissioning parents and surrogate parents before, during and even after the child is born. It sets out all the parties’ intentions and expectations and can include issues such as the making of a parental order, the financial obligations towards the child, the surrogate’s relationship with the child and how the child will be brought up.
If I wish to use a surrogate do I need to pay her?
Surrogates cannot be paid for commercial purposes however, a surrogate can be paid reasonable expenses which is determined on a case by case basis.
How to start the surrogacy process
If you’ve already taken expert legal advice and have decided that surrogacy is the right route for you in order to grow your family, it’s important that you carefully consider who your surrogate might be. Some people ask a family member or friend to be a surrogate, and some choose to find a surrogate through an agency or organisation. Fertility clinics are not legally allowed to find a surrogate for you.
It’s a good idea to draw up a surrogacy agreement as early in the process as possible so that everyone is clear about what to expect and how the arrangement will work for all involved. The surrogate should sign this agreement before you proceed with conception.
What is the difference between a known donor and an unknown donor?
The commissioning parents will not know the identity of an unknown donor unlike a known donor. In the UK an unknown donor can only be used through a UK licensed clinic. Likewise, an unknown donor will not know the identity of the mother or any child conceived but can request confirmation of the number of children born as a result of their donation, the children’s genders and the years of birth.
Can a donor conceived child find out who the donor was?
An unknown donor will remain anonymous until the child turns 16 after which they can request non-identifying information. Once a child turns 18 they can then request identifying information about the donor however, donations before 1 April 2005 were anonymous therefore any information before this date will only be available if the donors have agreed to remove their anonymity.
If I used a donor then can my partner be the child’s legal parent?
This will depend on the relationship between you and your partner and whether the donation was carried out in a UK licensed clinic. If the donation is carried out in a UK licensed clinic then the donor will not be the child’s legal parent and the mother can agree for her partner to be the other legal parent, regardless of whether they are married or in a civil partnership. If the donation takes place outside of a UK licensed clinic then the partner must be married or in a civil partnership with the mother in order to be considered the child’s legal parent.
What is a donor agreement?
A donor agreement may be drawn up and entered into by the commissioning parents and the donor before, during and even after the child is born. It sets out all the parties’ intentions and expectations and can include issues such as the financial obligations towards the child, the donor’s relationship with the child and how the child will be brought up.
Why should I get a donor agreement?
Donor agreements are not legally binding in the UK. A donor agreement is however useful to ensure that all the parties involved understand the practicalities of the arrangement. This can help avoid any misunderstandings, oversights and disappointment at a later date. Although donor agreements are not legally binding, the courts can still consider them in relation to any disagreements in the future to take into account the parties’ intentions.
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