The UK’s surrogacy law can be a complex area to navigate, and the process is not always entirely straightforward, so it’s important to obtain legal advice before you start out. At DTM, our family lawyers have expertise in dealing with a range of complex children-related issues.
What is Surrogacy according to UK law?
Surrogacy is an arrangement whereby a woman (referred to as the surrogate) carries a baby on behalf of another family or individual who will afterwards become the child’s parent or parents (referred to as the intended parent(s)).
Surrogacy is legal in the UK but, unlike other jurisdictions, you are not able to enter a commercial arrangement with the surrogate and only their “reasonable expenses” can be paid.
There are two types of surrogacy:
- ‘Traditional’ – This is the process whereby the surrogate mother is also the child’s biological mother having used one of the surrogate’s own eggs along with the sperm of the intended father; or
- ‘Host’ or ‘gestational’ – whereby the surrogate is genetically unrelated to the child and the embryo has been created using the egg and sperm of intended parents and/or donors.
The woman who carries a child will be their legal parent at birth. If they are married or in a civil partnership, their spouse or civil partner will also be the child’s second parent, unless they did not give their permission.
Whilst the intended parents are not automatically the legal parents of the child, Legal parenthood can be transferred by parental order or adoption after the child is born.
What is a Parental Order and how does it work?
A Parental Order transfers parentage from the surrogate mother to the intended parent or parents. This is a process that can only happen once the baby is born and is subject to conditions. The surrogate mother (and her husband or civil partner) must consent to the Parental Order, but she cannot consent until the child is at least 6 weeks old. The Intended parents must apply for the Order before the child turns 6 months old.
When the application for a Parental Order is made by an individual, they must be genetically related to the child, either as the sperm or egg donor. Where the application for a Parental Order is made by two people, one of the applicants must be genetically related to the child. In addition, the applicants must either be husband and wife, civil partners or two people who are living as partners in an “enduring family relationship”.
If the intended parents are not the child’s biological parents, or it is a single person, they cannot get a Parental Order. However, they can apply to adopt the child. To do this, it would be necessary to register with an adoption agency as part of the surrogacy process.
What are “reasonable expenses” to pay a surrogate?
Every case is different so there is no set formula to work out “reasonable expenses” in the UK. However, such payments might include things such as travel expenses, medical costs, and maternity clothing.
When the family court decides whether to grant a Parental Order, they will take into account whether any payments have been made to the surrogate. This is because, under the law, you cannot pay any more than the surrogate’s “reasonable expenses”.
What happens if there is a dispute with the surrogate?
Surrogacy arrangements are not legally binding, so the surrogate mother can change her mind and keep the baby even if it is not biologically hers.
If there is disagreement about who the child’s legal parents should be, the courts will decide based on the best interests of the child.
International surrogacy from the UK
International surrogacy is an option but one that can bring up a variety of additional considerations including nationality, and immigration but also whether there is synergy between the laws of that country and England and Wales. This would usually require working closely with international surrogacy and immigration solicitors.
Next steps for those considering surrogacy
Surrogacy is an evolving area of law. If you are considering surrogacy, it is essential to consult a family law specialist to make sure you fully understand your legal rights. DTM Legal offer a wide range of Child Arrangement services so please don’t hesitate to get in touch for further information. To contact the Family Law team call 01244 568635 or email helen.davies@dtmlegal.com.
