Surrogacy is when a woman (the surrogate) carries and gives birth to a baby for another person or couple (the intend parent(s)), whether using her own eggs or those of another woman.
Having a child via surrogacy is becoming increasingly more common for both same sex couples, and opposite sex couples where the female partner is unable to carry the child herself.
The laws relating to surrogacy in the UK are complicated and so specialist advice should be obtained before making any arrangements. Commercial surrogacy is illegal in the UK, which means you cannot pay a surrogate more than reasonable expenses and surrogacy contracts are unenforceable. It is therefore unsurprising that due to a shortage of surrogates and lack of protection for the intended parents, many are choosing to go abroad to countries such as the USA, where surrogacy is well established and arrangements are enforceable.
Whether surrogacy takes place in the UK or abroad, the intended parents are not automatically the legal parents of the child. In the UK, the surrogate will always be the legal mother and if she is married or in a civil partnership her spouse will be the other legal parent unless it can be shown they did not consent to the treatment. The only way to confer legal parentage and parental responsibility upon the intended parent(s) is for them to apply to the Court for a parental order. Without such an order, they will not be the legal parents of the child, whether or not they are the biological parents.
Without legal parentage both the child and intended parent(s) will not have the lifelong connection to each other that they would have had if the child had not been born via surrogacy, and this can affect things such as inheritance rights. Parental responsibility is also essential, as without this the intended parent(s) will likely encounter difficulties in making decisions for the child, such as in relation to medical treatment and education.
When applying for a parental order, various criteria must be met, for example at least one of the applicant’s must be domiciled in the UK; the child must be living with the applicants at the time of the application and the surrogate (and her spouse or civil partner if she has one) must consent to the order being made. In more recent years the Court has shown flexibility when applying these criteria, but this should not mean they will do so every time. If you do not meet the criteria for a Parental Order, there are alternative options you can consider, such as:
- Child arrangements order.
- Special guardianship order.
- Adoption.
It is therefore extremely important to obtain specialist legal advice before embarking upon a surrogacy journey to ensure that there are no complications further down the line. If you would like further information on parental order or surrogacy arrangements in general, you can contact our family law team.
