What is a surrogacy arrangement?
Surrogacy is an arrangement in which a person (the surrogate) carries and gives birth to a baby for another individual or couple with the intention that the individual or couple will be the baby’s parents following the birth (the intended parents). In most surrogacy arrangements, the surrogate is not genetically related to the baby. Eggs and/or sperm may be donated by the intended parents, one of whom must be genetically related to the child in order to apply for a parental order under current law.
Who will be the legal parents when the child is born?
Under domestic law, the gestational mother who gives birth to the child is always the legal parent of the child upon birth and will be named on the birth certificate. As such, the surrogate will automatically be recognised as the legal parent to the child. This remains the case even if the surrogate is not genetically related to the child. Even if the child was conceived using your egg, your partner’s egg or a donated egg, the surrogate will still be the legal parent upon birth.
If the surrogate is married or in a civil partnership, their spouse/civil partner will automatically be considered the other legal parent unless it is shown that their spouse/civil partner did not consent to the conception. The matter of non-consent is a complicated area of law and it is highly recommended that you seek specialist legal advice.
If the surrogate is not married or in a civil partnership then it may be possible for one of the intended parent(s) to be recognised as a legal parent upon the birth of the child by virtue of the agreed fatherhood or agreed second parenthood conditions. This is also applicable if it is shown that the surrogate’s spouse/partner did not consent to the surrogacy arrangement.
Whatever shape your surrogacy arrangement takes, it is important to know that when the child is born it is highly likely that at least one intended parent(s) will not be legally recognised as a parent of the child.
As an intended parent, how can I be recognised as a legal parent to my child?
At the birth of the child, one or both intended parent(s) may not be legally recognised as the child’s parent.
To remedy this, an application for a parental order must be made to the court. For a parental order to be granted, at least one of the intended parents must be genetically related to the child. When an application for a parental order is successful the intended parent(s) will be the legal parent(s) of the child. The surrogate’s status as a legal parent of the child will be removed, along with all corresponding rights and responsibilities.
As a single person, can I apply for a parental order?
Yes. Since 3 January 2019, single parents have been able to apply for a parental order following a surrogacy arrangement.
As a same sex male couple, can we apply for a parental order?
Yes, same sex male couples can apply for a parental order. Once the parental order has been granted following a surrogacy arrangement, both fathers can be named on the baby’s birth certificate.
My partner and I are not married or in a civil partnership, but are in a committed, long-term relationship. Can we apply for a parental order?
Yes. You are not required to be married or in a civil partnership to make a joint application with your partner; it is sufficient to be living in an enduring family relationship. In fact, in a recent case the court made a joint parental order in favour of unmarried intended parents who had ended their relationship before the child was born and were no longer living together at the time of the application.
What is the process for applying for a parental order?
The application for a parental order must be made when the baby is between six weeks and six months old. It is not possible to apply for the parental order within six weeks of the child’s birth. This is because the surrogate (and her spouse/civil partner, if applicable) must consent to the making of the parental order. This consent is not valid if given within the first six weeks.
The application form and supporting documents must then be sent to the Family Court, along with the court fee of £215.00.
The court will review the application and issue proceedings accordingly. There are usually two hearings for parental order applications: a first directions hearing and a final hearing. The court will also appoint a parental order reporter to act on behalf of the child for the purpose of the proceedings.
The first hearing determines matters such as the date for the final hearing, the dates for submitting supporting documents in advance of the final hearing, what further evidence the court requires, and formally orders the preparation of a parental order report. It is not necessary for the surrogate or her spouse/civil partner to attend the hearing unless they wish to, but they must have been notified of the date and time for the hearing.
At the final hearing, the judge will review all the documents and make a decision on whether to grant the parental order. Again, it is not necessary for the surrogate (or her spouse/civil partner) to attend the hearing, but it is a requirement that they be informed of the date of the final hearing in advance to enable attendance should they choose.
Following the making of the parental order, a copy of the parental order will be sent by the court to the General Registration Office to enable the details to be entered into the parental order register. Once the details are entered, a letter will be sent providing a reference number for ordering a copy birth certificate from the GRO listing the intended parents as the parents for the child.
Please note that these proceedings are more involved for parental order applications following international surrogacy arrangements and specialist legal advice is recommended.
If I entered into a surrogacy arrangement overseas, will I still need to apply for a parental order upon returning to live in England and Wales?
Yes. Even if you have already been through parentage proceedings in the other jurisdiction and are named on a foreign birth certificate, you will still need to apply for a UK parental order upon returning to live in England and Wales. Until the parental order is granted you will not be recognised as the legal parent for your child in England and Wales and will not have legal parental responsibility.
Is there a time limit for applying for a parental order?
Yes. The parental order application must be made within six months of the child’s birth. Furthermore, the surrogate must consent to the parental order being made, and they can only do so once the child is six weeks old at the earliest.
There have been cases in which the court has granted a parental order outside of the 6-month time limit, but these are decided on a case by case basis.
What are the respective advantages and disadvantages of a domestic surrogacy arrangement and an international surrogacy arrangement?
For many people considering surrogacy as a way of building their family, one of their first considerations is whether to move forward with a domestic or international arrangements. Each of these present their own advantages and disadvantages.
The potential benefits of a domestic surrogacy arrangement include the following:
- You may have the opportunity to feel more involved in the pregnancy if your surrogate is also based in the same country
- You will be familiar with the medical care your baby and surrogate will receive and this can be reassuring
- You will have the security and knowledge of the domestic legal system
- The process of obtaining a parental order is simpler if your child was born as a result of a domestic based surrogacy arrangement
The potential disadvantages of a domestic surrogacy arrangement include the following:
- Any agreement with the surrogate is not legally enforceable in England and Wales. Instead, it is a relationship built on trust
- It can be difficult to find a surrogate outside your family and circle of friends
- The surrogate will be the legal parent of the child at birth, and a parental order must be obtained post-birth to recognise the legal status of the intended parent(s)
- The potential benefits of an international surrogacy arrangement include the following:
- It can be easier to find a surrogate as commercial surrogacy is allowed in some countries, which means that there are agencies to facilitate the arrangement and the surrogate may be paid more than reasonable expenses
- It may be possible to have a binding legal contract to provide legal security to all parties
- The legal provisions in some jurisdictions allow the intended parents to be recognised as the legal parents of the child from birth
The potential disadvantages of an international surrogacy arrangement include the following:
- You will need to seek legal advice from the other jurisdiction regarding their rules and regulations
- Once the child is born, you are required to apply for the travel documentation to travel back to England and Wales, and this can take weeks, or even months
- It is often more expensive to go abroad
- You may be less familiar with the system providing medical care to your baby and surrogate
- You will still need to apply for a parental order upon return to England and Wales
Are surrogacy agreements enforceable in domestic law?
No. A surrogacy agreement cannot be enforced under domestic law, and it is against the law for solicitors to assist and negotiate in the preparation of surrogacy agreements. Instead, it is a relationship built on trust.
You may still wish to consider entering into an agreement to ensure that all parties have a thorough understanding of their expectations from the arrangement and that everyone is on the same page. It can include matters such as expenses and contact between the intended parents and the surrogate during the pregnancy.
How can I find a surrogate in the UK?
Commercial surrogacy arrangements are against domestic law and it can be difficult to find a surrogate outside your family and circle of friends.
There may be other organisations that are able to assist in finding a surrogate, such as by organising events which provide the opportunity for potential surrogates and intended parents to meet. The Human Fertilisation and Embryology Authority suggest the following organisations as a starting place:
Am I allowed to request payment in return for being a surrogate?
No. Under domestic law, surrogates may only be paid reasonable expenses for their participation in the arrangement. What constitutes reasonable expenses is decided by the court on a case by case basis when making a parental order.
Am I allowed to advertise that I wish to become a surrogate?
No. It is against domestic law to advertise that you wish to become a surrogate.