As society evolves, it has becoming increasingly common for those with issues surrounding fertility or conception to turn to surrogacy as the path to parenthood.
What is Surrogacy?
Surrogacy is where a woman (the surrogate) carries a baby on behalf of a couple or an individual who intends to become the child’s parents.
There are two types of surrogacy;
- Traditional Surrogacy– the surrogate becomes pregnant through artificial insemination and using her own eggs, so is genetically related to the baby.
- Host Surrogacy– the surrogate is impregnated through IVF using either eggs from a donor or the intended mother, meaning the surrogate does not have a genetic link with the baby. In recent years, this has become the more frequently used method of surrogacy.
What is the Legal Position?
At present, surrogacy is legal in the UK. However, the law states that the woman who gives birth to the child is the legal parent, and will have parental responsibility regardless of genetic relation to the child, contracts or payments. If she is married, she and her spouse are both the legal parents. This means that biological parent/s do not have any rights to the child until a ‘Parental Order’ is in place.
Surrogacy agreements are not legally enforceable in England and so it is important to obtain independent legal advice prior to entering into any treatment.
What is a ‘Parental Order’?
A Parental Order permanently reassigns parenthood to the intended parent/s. It allows the proposed individual/s to become the legal parent/s of the child and permanently extinguishes the parenthood of a surrogate and any spouse.
Once a Parental Order is made, the birth certificate is re-registered to record the intended parent/s as the legal parent/s. The original birth certificate will be sealed as part of the Parental Order Register and will only be available to the child once they are over 18.
The surrogate must agree to this unconditionally. If there is disagreement about who the child’s legal parents should be (i.e. the surrogate would like to keep the child,) the courts will make a decision based on the best interests of the child.
What is the process for a Parental Order?
To attain a Parental Order, the proposed parent(s) must demonstrate to the Family Court that the transferred parenthood is for the child’s best interest and they meet all the following criteria:
Applying with a partner
- one party must be biologically related to the child (the egg or sperm donor)
- the couple must be married, civil partners or living as partners
- the child must reside with the couple permanently in the UK, Channel Islands or Isle of Man
- the application must be within six months of the child’s birth (unless there are exceptional circumstances)
If an applicant is applying as an individual, they must be biologically related to the child (the egg or sperm donor) and if the surrogacy took place outside of the UK, then any application needs to be made to the High Court.
What is illegal under UK Law?
- Advertising- you cannot advertise that you’re willing to be a surrogate or that you’re looking for a surrogate. You also cannot act as a third party to facilitate to making a surrogacy agreement unless you work for a non-profit organisation.
- Payments- cannot be given or accepted in exchange for surrogacy. However, reasonable expenses are allowed, though this is not defined by statute and is at the Court’s discretion
- Surrogacy Agencies- It is illegal to receive payment for organising a surrogacy unless it is part of a non-profit organisation.
The team at Dutton Gregory is experienced in Surrogacy Law and Parental Order applications and can assist with advice prior to entering into surrogacy arrangements, preparing and issuing court applications, and guidance in obtaining a Parental Order.
