What is surrogacy?
Surrogacy is the process by which a child is carried through pregnancy by a woman who has entered into an arrangement (before she started to carry the child) with the intention that, at birth, the child and parental responsibility for it will be transferred to another person or persons, and that those person(s) will become the legal parent(s) of the child.
There are two types of surrogacy: partial/ traditional and total/gestational
Partial/traditional surrogacy is where the surrogate mother is also the child’s biological mother. The baby will be genetically related to the father via sperm donation. Total/gestational surrogacy occurs when the surrogate is genetically unrelated to the child. The embryo is created via:
- A genetic mother’s egg and genetic father’s (or donor’s) sperm.
- A donor egg and genetic father’s sperm.
- A donor egg and donor sperm.
Is surrogacy legal in the UK?
Surrogacy is legal in the UK. However, surrogacy agreements are not enforceable by law. In practice, this means that the surrogate mother is the legal mother of the child until this situation is altered by the Court. A surrogate mother can choose to keep the baby, even if she is not genetically related to it.
Legal parenthood is transferred to the commissioning couple via a Parental Order or adoption.
Once a Parental Order is made, it severs all legal ties with the surrogate parent.
Can I pay a surrogate in the UK?
It is illegal to pay any money to a surrogate over and above reasonable expenses relating to the pregnancy and labour. When making a Parental Order, the Court must be satisfied that no commercial payment or benefit has been made to the surrogate.
It is not unusual for commissioning parents to find themselves in contravention of the payment law around surrogacy. However, the Court’s recognise that in most cases, the welfare of the child demands that a Parental Order be made. This is by no means guaranteed and commissioning parents should be strict about ensuring unlawful payments are not made to the surrogate.
By instructing our family law Solicitors, you can be assured of up-to-date, carefully considered advice, allowing you to act lawfully throughout the entire surrogacy process, thereby minimising the risk of a Parental Order not being granted.
Can I use an overseas-based surrogate?
Due to the ambiguity of the law in the UK, many couples choose to use a surrogate based abroad.
In some jurisdictions (for example, California) the legislation is such that the commissioning parents can seek orders before the birth, and thus become the child’s legal parents before it is born. In others, the surrogate may not renege on the agreement (provided it is properly constituted). However, this does not alter the position that in England and Wales, a Parental Order must be obtained. The Court will require evidence of consent on the part of the surrogate, provided at least six weeks after giving birth. Consent provided earlier will not be valid in England and Wales.
Also, consent provided outside the UK must be witnessed by a suitable person such as a notary public or a British Consular official. This can be difficult in practice; however, we can take steps to arrange this for you in conjunction with the agency overseeing the surrogacy.
Can my child through surrogacy obtain British Citizenship?
Immigration difficulties can cause endless heartache and expense for couples who do not seek legal advice on the matter before entering into a surrogacy arrangement. This is especially the case if the commissioning parents are not British nationals but reside in the UK.
Our family law team will collaborate with our immigration Solicitors to ensure immigration challenges are spotted before you start the surrogacy process. We will then provide the advice and representation you need to ensure your child can enter and remain in the UK.