Surrogacy is legal in the UK, but if you make a surrogacy agreement it cannot be enforced by the law.
Bethan Carr, our specialist surrogacy lawyer explains surrogacy law and the process.
What is surrogacy law in the UK?
In the UK, the woman who gives birth to a child is the legal mother, and if she is married, her spouse is recognised as the child’s second legal parent.
This law has a direct impact on surrogacy in that the intended parents (who may also be the biological parents) are not recognised as their child’s legal parents from birth.
Why do I need a parental order?
This frustrating legal position is resolved by the intended parents applying to the UK court for a parental order.
The parental order will remove the status of the surrogate and her spouse, and reassign legal parenthood and parental responsibility to the intended parents.
How do I apply for a parental order?
To obtain a parental order you need to make an application to the court once your baby has been born by completing the Form C51.
When considering a parental order application, the court will want to be satisfied with a number of criteria, and I have explored a few of these below.
Who can apply for a parental order?
You can make an application for a parental order if you fulfil the following criteria:
- Single, a couple (either married, in a civil partnership or living together in an ‘enduring family relationship’).
- One of both applicants must be domiciled* in the United Kingdom, Channel Islands, or the Isle of Man
- Your surrogate must freely, and with a full understanding of what is involved, agree unconditionally to the making of the parental order.
- If she is married, her husband/wife will also need to consent. This is an absolute requirement, and if your surrogate and her spouse do not consent, then the court will not be able to make a parental order.
Obtaining their consent is, in practice, a paperwork exercise and one that must be handled carefully, particularly where you are going through surrogacy overseas and there may be a language barrier.
Other criteria for a parental order
There are also a number of other criteria you will need to meet, including those relating to payments made to your surrogate, the time frame in which your application should be made and your biological link to the child. We can discuss these with you in more detail.
What if you cannot apply for a parental order?
The closest alternative to a parental order is an adoption order. However, the law and processes can be complicated as it was never designed with a surrogacy arrangement in mind.
Other options are a child arrangements order or a special guardianship order. Neither of these options will reassign parenthood and so won’t give intended parents a complete legal solution.
Our surrogacy team can help you understand all of the options open to you and discuss the different orders available.
Get in touch
If you would like any advice on surrogacy, adoption and fertility law, please do contact our Client Care Team to speak to one of our specialist lawyers here.
The Fertility Show 2019
Alternatively, Bethan will be at the Fertility Show at London Olympia on 1-3 November – Stand H26 with our surrogacy team and will be on hand to answer any questions and advice on anything relating to surrogacy, fertility law, and any surrounding family law issues.
*Domicile is a tricky legal concept and broadly speaking, looks at where an individual considers their home to be. Everyone is born with a ‘domicile of origin’ but this can subsequently be changed by moving to a new country and forming the intention to make it your permanent and indefinite home, and this is called acquiring a ‘domicile of choice.’ If you were born overseas and now live in the UK, or if you were born in the UK but lived overseas for a period of time, it is important to get advice before starting your surrogacy journey to ensure you will be able to satisfy the court of your domicile. I have lots of experience working with international families and can advise further.
The post was originally published in 2018 and has since been updated.