Surrogacy has become an increasingly popular and prominent path to parenthood for those who are unable to conceive a child themselves. Over the past decade, the number of parental orders made in this country following a surrogate birth has tripled but the true figure for children born by way of a surrogacy arrangement is thought to be significantly higher as many parents decide not to apply for such orders. Despite this burgeoning growth, surrogacy law in the UK remains complex and is widely considered to be unfit for purpose. It is currently the subject of a Law Commission review, focused on better reflecting the wishes of everyone involved, which is expected to result in a range of reforms including regulated surrogacy organisations, uniform surrogacy contracts and a series of safeguards to reduce the risk of arrangements breaking down.
Below are some frequently asked questions on surrogacy law and process which highlight many of the issues that prospective parents are likely to encounter and the options that are available.
Surrogacy is where a woman carries and gives birth to a child for another person, or a couple. There are two different types of surrogacy arrangements.
A straight surrogacy arrangement is one in which the surrogate will be the child’s biological parent and use her own eggs together with the sperm of the intended father or a donor. It is often dealt with informally and sometimes without the assistance of a fertility clinic.
A gestational surrogacy arrangement in comparison is where the intended parents will be the biological parents of their child, or where the child might be conceived with either eggs or sperm from a donor. The surrogate has no biological link to the child. By the very nature of these type of arrangements, conception must happen at a fertility clinic, either in the UK or overseas.
It is important to remember that in both cases the surrogate will be the child’s legal parent.
It is possible to enter into a surrogacy agreement in the UK but it is not legally enforceable. No matter what the biological position and where the child is born, the surrogate will always be recognised as the legal mother of the child, and if she is married her spouse will be recognised as the child’s legal father/second legal parent.
If your surrogate is single, one of the intended parents may be named on the initial birth certificate but this will depend on a number of factors, including whether your child was conceived at a fertility clinic. Our specialist surrogacy law team can advise you on the various HFEA forms you can sign prior to conception.
Ultimately this legal position means that as intended parents you will not be fully recognised as your child’s legal parents at birth, and so you will need to apply for a parental order once your child has been born.
After your baby’s birth, you will need to make an application to the UK Family Court for a parental order. This is the UK solution in a surrogacy arrangement, and once granted, it will mean that the status of your surrogate (and her spouse, if married) is extinguished and parentage reassigned to the intended parents.
It is legal to enter into a surrogacy arrangement in the UK, but there are some restrictions, which are important to bear in mind.
As explained above, there are two main options when considering a surrogacy arrangement – straight surrogacy, where a surrogate will use her own eggs together with the intended father’s sperm, and gestational surrogacy, where the surrogate is not genetically related to the child and the gametes of the intended parent/s are used (sometimes with the help of a sperm/egg donor).
In the UK, intended parents find a surrogate by either joining a surrogacy agency (usually a not for profit organisation which can support you with finding a surrogate), looking online (on websites or Facebook groups) or via family/friends.
Conception will happen via artificial insemination, either at home or at a fertility clinic. The surrogate will then carry the pregnancy for the intended parent/s and will assume care of the child at birth.
When the child is born, the surrogate is the legal mother, and if she is married, her spouse is the second legal parent. The intended parent/s must apply to their local Family Court for a parental order in order to extinguish the status of the surrogate and her spouse, and reassign parentage to the intended parent/s.
The court process usually takes 4-12 months, and will involve one or more court hearings.
There are various steps involved with a surrogacy journey in the UK, and, in very brief outline, these are as follows:
In England and Wales, the surrogate will continue to be the legal mother of the child until such time as a parental order is obtained. A parental order requires the surrogate’s consent. This means that at any point up until a parental order is granted, the surrogate could decide to keep the baby. In practice this could mean the surrogate refusing to allow the baby to leave hospital with the intended parent or parents.
There is no way of providing or entering into any form of guarantee that the surrogate will give her consent to a parental order. Surrogacy agreements, or any other form of written or verbal agreement that purports to offer protection and guarantee that the surrogate will agree to a parental order, will not be enforceable.
The most common overseas destinations for intended parents who are considering a surrogacy arrangement are the USA, Canada, Ukraine and Georgia. There are various restrictions in countries such as Ukraine and Georgia which limit the types of intended parents who can pursue a surrogacy arrangement there - our surrogacy team can advise you on the advantages and disadvantages of each destination.
In most overseas surrogacy destinations, you will be recognised as your baby’s legal parents at birth. However, this is not the case under UK law, as regardless of biology and where in the world your child is born, UK surrogacy law still recognises the surrogate as the legal mother, and if she is married, her spouse as the father or second legal parent.
This means you can be left in a bizarre situation where you have documentation from the country of your child’s birth that names you as the parents but this is not recognised in the UK.
In order to resolve this position, you will need to apply for a parental order.
In most cases, yes. Depending on your future plans and status in your current country of residence, you will still not be recognised under UK family law as your child’s legal parents.
Whether or not you will be able to apply will depend on your domicile, as UK law says that at least one of the intended parents (or the intended parent, in the case of a single applicant) must be domiciled in a part of the UK, Channel Islands or Isle of Man in order to be eligible for a parental order. Domicile is a very particular legal concept which needs to be considered carefully if you have overseas connections. If you can’t establish a domicile in the UK, the court simply does not have the jurisdiction to grant a parental order.
Our surrogacy law team has experience of complex domicile cases and will be able to explore this with you and advise you on your ability to apply for a parental order.
This will depend on the country in which your baby is born. One of our immigration lawyers will sit down with you in an initial planning meeting to come up with a precise plan to ensure that you can get home as soon as possible with your baby. This may involve applying for British nationality and a British passport before travelling, or in some cases, it may be that you can look to apply for a local passport. We will advise you on the best option for you.
You can make your application for a parental order using a C51 application form and sending this off to the Family Court with a copy of your child’s birth certificate. You do not need to wait six weeks to apply, and we will usually make your application while you are still overseas to get the ball rolling for you.
This application process can take 6-12 months and would usually involve 1-2 hearings before a High Court judge.
The court will look at a number of criteria in order to ensure you are eligible for a parental order and will also consider whether the making of the order is in your child’s lifelong best interests. We can provide legal advice on these criteria and support you with this process in a number of different ways.