Surrogacy is an arrangement where a person (the surrogate) agrees to carry a baby for another person or a couple who will be the baby’s parent(s) after birth. Traditionally, the surrogate would be the baby’s biological parent. More commonly, the surrogate is not biologically related to the baby. The person or couple the surrogate is carrying a baby for will donate an egg and/or sperm, or a donor will be found, and an embryo will be created.
Surrogacy agreements in the UK
If you are considering surrogacy in the UK, it is it is critical that everyone has a thorough understanding of what is expected of them and that they are comfortable with the arrangement.
A surrogacy agreement can be used to set out the arrangement and ensure that everyone is on the same page. Examples of what a surrogacy agreement might include are how expenses will be covered and whether the intended parents will have contact with the surrogate throughout the pregnancy.
A surrogacy agreement cannot be enforced by the law, even if the intended parents donated an egg and/or sperm. This means that it is a relationship built on trust. If the relationship between the surrogate and the intended parents breaks down, it can lead to complications. For example, the surrogate may not wish to give the baby to the intended parents as planned or the intended parents may not follow through with the agreement.
Providing all the parties have a thorough understanding of the expectations and have built up a relationship where they can communicate, it is very rare for arrangements to break down.
When considering or entering into a surrogacy arrangement, it is important to understand that UK surrogacy law automatically recognises the person who gives birth (the surrogate) as the legal parent and they will be named on the birth certificate.
This is true even if the baby was conceived using a donated egg and the surrogate is not biologically related to the child. If the surrogate is married or in a civil partnership, their spouse/civil partner will automatically be considered the other legal parent, unless it can be shown that their spouse/civil partner did not agree to the conception.
This means that at birth one or both of the intended parents will not be legally recognised as the child’s parent. This has far reaching consequences, for example, they will not be able to make medical decisions for the child and have no automatic legal rights or responsibilities.
To remedy this, an application for a parental order must be made to the court. A parental order secures the legal status of the intended parents under UK law. The surrogate must consent to the parental order being granted and they can only do this once the baby is six weeks old. For a parental order to be granted, at least one of the intended parents must be biologically related to the child.
Once a parental order is granted, a new birth certificate will be issued with the names of the intended parents. This revokes the surrogate and her spouse/civil partner’s status as parents. It is important to know that once the child is 18 years old, they are legally entitled to access their original birth certificate and find out who the surrogate was.
Since 3 January 2019, single parents have been able to apply for a UK parental order following surrogacy. This means that surrogacy is an option for both individuals and couples.
On 6 April 2010, the law changed to allow two fathers to be named on a birth certificate on the making of a parental order following a surrogacy agreement.
If you are considering entering into an international arrangement, we recommend seeking legal advice in the UK and the overseas jurisdiction. Surrogacy law varies in different countries and it is important that everyone is clear on their legal rights. You also need to be certain you will be able to bring the child back home to the UK.
If you entered into an arrangement with an international surrogate and you are named on a foreign birth certificate as the child’s parent, a UK parental order is still required. Without this, you will not be recognised as the legal parent for your child in the UK and will not have legal parental responsibility.
Contact a surrogacy solicitor
Our surrogacy solicitors have assisted a number of intended parents on their journey to parenthood. We can advise you on UK and international arrangements and their legal implications. We can also help you consider alternatives where necessary. Request a consultation with our specialist team or contact us directly on 0800 422 0123.