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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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.
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.
Contrary to popular belief, it is not illegal to pay a surrogate mother for her services in the UK.
However, during the parental order application, the court will need to authorise any payments made over and above the expenses she has reasonably incurred.
There is no definition of reasonable expenses, which means the court must decide what is reasonable in each case.
The court often takes quite a relaxed approach and there is a history of the High Court approving payments in international cases that equate to more than expenses.
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.
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.
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.
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.
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.
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?