Surrogacy law & legal advice

Surrogacy is becoming a more popular option for both same-sex and heterosexual couples who are unable to conceive children themselves.

Surrogacy law is an extremely complex area of law, especially in cases with an international element. It is therefore important to understand what you should consider if you are thinking about surrogacy. We strongly recommend that you seek legal advice to discuss your options at the earliest stage possible so that you can make an informed decision as to your next steps.

Our specialist surrogacy lawyers look after clients across Sussex, with offices in Brighton, Chichester, Crawley, Eastbourne, East Grinstead, Lewes, Peacehaven, Seaford and Storrington, as well as London.

Surrogacy in the UK

In the UK, surrogacy is legal, however, it is important to know that if you enter into a surrogacy agreement with someone, it is not currently enforceable by law – even if the agreement is signed by both you and your surrogate and you have paid their reasonable expenses.

Commercial surrogacy arrangements – paying someone to be a surrogate, or arranging surrogacy to make a profit – are illegal in the UK, under The Surrogacy Arrangements Act 1985. This Act also makes it illegal to advertise looking for a surrogate or advertising the fact that you are a potential surrogate looking for parents.

With UK surrogacy agreements, this means that no more than ‘reasonable expenses’ can be paid to the surrogate, although there is no strict definition of what reasonable expenses are.

Any payments made to your surrogate can be dealt with within your Parental Order.

Surrogacy agreements

Although not enforceable by law, when pursuing surrogacy, the intended parents and the surrogate (plus their partner or spouse) can work together on a surrogacy agreement, which lays out how both parties want the arrangement to work and the commitment each party is making.

Before making this agreement, it is advised that you get to know each other properly, over a period of time to allow trust to develop between you. It is essential that everyone commences the agreement with their full consent and understanding, and that all parties discuss every potential outcome of the arrangement, for example conception and pregnancy arrangements, birth and post-birth arrangements, what could go wrong, communication, parental order arrangements, costs and expenses.

You can seek help from a number of non-profit organisations that can lawfully help with the process of surrogacy.

Legal parenthood & Parental Orders

Entering into an agreement with your surrogate does not automatically give you and your partner legal parenthood. Under the current law, the surrogate will be the child’s legal parent when the child is born, with their spouse or civil partner as the other parent (unless they did not give permission to be so).

In order to achieve legal parenthood, a Parental Order must be obtained from the family court within six months of the child’s birth. This Order can only be made with the surrogate’s consent.

A Parental Order gives you full legal recognition of your status as the child’s parents and automatically then grants you with Parental Responsibility, which legally allows you to make important decisions about the child’s future e.g. education and medical care. It is an important safeguarding process, involving a court-appointed social worker to protect the best interests of the child. To obtain a Parental Order the following must apply:

• You must be over 18 years old
• The surrogate (and their partner if married or in a civil partnership) must give their consent
• The child was artificially conceived
• The child is genetically related to either you or your partner
• You live with the child
• You or your partner must live in the UK
• The surrogate is not paid more than reasonable expenses
• The order is being applied for within six months of the child’s birth

The process of obtaining a Parental Order is as follows:

1. An application is made to the court – you are usually asked to also submit a supporting statement with evidence of how you fulfil the criteria listed above.
2. The appointment of a Parental Order Reporter by the court – the court asks Cafcass (Children and Family Court Advisory and Support Service) to provide a Reporter, who represents the interests of the child, to help decide if the Order should be granted. The time this takes depends on the individual local court, but is usually assigned within 5 working days.
3. Work completed by the Reporter – they will investigate the case, including meeting the intended parents with the child and ensuring surrogate consent. The Reporter will then submit a Parental Order Report to the court, usually within 8 to 12 weeks.
4. Final court hearing – this is when the decision is made on whether the Order will be granted. As long as all criteria for the Parental Order is met, it is rare that Orders are not considered in the child’s best interests, with the vast majority being granted.
5. A new birth certificate – once granted the Order is sent to the General Register Office who records the details. At this point you can apply for a new birth certificate.

When do surrogacy disputes occur?

Like any life-changing event that is inherently emotional and stressful for the parties involved, issues of dispute during surrogacy can arise, where you may need to seek legal advice.

These include but are not limited to:

• Disputes about who the child’s legal parents should be
• Disputes relating to expense payments
• Practical arrangements such as obtaining the surrogate mother’s consent
• Any rules or issues that must be complied with.

Our team can help if you experience any of these issues during your surrogacy process.

For surrogacy legal advice – contact our team today

If you have a child born through surrogacy and are unsure of your legal status, our surrogacy lawyers are here to help and will be able to offer you tailored advice about your individual circumstances. Contact us and we will be happy to discuss your options.