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What is surrogacy?

Surrogacy is where a woman carries and gives birth to a child for another person, or couple. There are two types of surrogacy arrangement:

Traditional surrogacy – the surrogate is artificially inseminated with the intended father or donor’s sperm. 

The surrogate not only carries the child, but also donates her egg, and as such she is biologically related to the child. 

Gestational surrogacy – the surrogate is implanted with an embryo via IVF, and therefore she is not biologically related to the child. 

Often the sperm and egg of the intended parents will be used, which means the child will be biologically theirs. Donor egg or sperm can be used if this is not possible. 

It is possible to use donor egg and sperm, but this will impact your ability to apply for a parental order.

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      About surrogacy in the UK

      • Is surrogacy legal in the UK?

        Yes, it has always been legal to enter into a surrogacy arrangement in the UK. However, there are various rules and regulations which need to be carefully considered. 

        Surrogacy contracts are unenforceable, which means trust between everyone involved must be established. 

        It is also against the law for a third party (such as a solicitor) to take payment for negotiating a surrogacy contact.

      • What is a surrogacy agreement, and are they legally binding?

        A surrogacy agreement is not enforceable in the UK, and the intended parent(s) will need to apply to the court to become the legal parents of the child.

      • Is it legal to pay our surrogate?

        Contrary to popular belief, it is not illegal for intended parents to pay a surrogate more than her reasonable expenses.

        The issue of payment is just one of the considerations of the family court, which will have to authorise any payments for more than reasonable expenses before it can make a parental order.

        There is no definition of reasonable expenses, and in practice the court often takes a relaxed approach. There is a history of the High Court approving payments in international cases that were more than expenses.

      • Can the intended parents be named on the child’s birth certificate?

        The birth certificate must reflect the legal position at birth. 

        This means the surrogate will always be named on the birth certificate in the UK. Whether one of the intended parents can be named depends on whether the surrogate is married/in a civil partnership, and the circumstances surrounding insemination.

      • What is a parental order?

        A parental order makes the intended parent(s) of the child the legal parents, and permanently removes the legal parenthood of the surrogate and her spouse.

        Once the order has been made, the birth will be re-registered, and the original birth certificate will be sealed and only accessible to the child once they are over 18. 

        The court process can take between 4-12 months and usually involves 1 or 2 court hearings.

      • Can the surrogate change her mind and try to keep the baby?

        The surrogate remains the legal parent until a parental order is made. 

        The surrogates consent is also required before a parental order can be made. 

        Many intended parents worry about what would happen if the surrogate wanted to keep the baby, but cases of this happening are incredibly low. The surrogate can also be concerned that she may be left holding the baby if the intended parents change their mind, or their circumstances change.

      • What are the most common overseas surrogacy destinations?

        The most popular destinations for surrogacy arrangements abroad are US, Canada, Georgia, Greece and previously Ukraine. It is important to do extensive research before embarking upon a surrogacy arrangement abroad. It may be that your marital status and gender dictate the options available to you. 

        It is important that you comply with the law in the UK and your destination country.

      • If I am named on the foreign birth certificate/post birth order, will I be recognised as the legal parent in the UK?

        No. In the UK, the surrogate will always be the legal mother. 

        Whether one of the intended parents can be recognised as the legal parent at birth depends on the surrogate’s marital status and the circumstances surrounding the insemination.

      Show Transcript

      Family Lawyer Liza Gatrell at Stowe Family Law explains what the surrogacy laws are in the UK, is surrogacy legal in the UK, who are the legal parents, what is a parental order, how do you apply for a parental order, what if you cannot obtain a parental order, what happens if you use a surrogate aboard, and how can a family lawyer help?

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