How does Surrogacy work in the UK

Surrogacy is where a woman carries and gives birth to a child for another person, or another couple.

There are two different types of surrogacy arrangement:

Traditional/ Straight Surrogacy: Where the surrogate will be the child’s biological parent. The surrogate’s own egg will be used with the sperm of the intended father.

Gestational Surrogacy:Where the Surrogate has no genetic link to the child. The egg and sperm could be from the Intended Parents, or the child might be conceived with an egg or sperm from a donor.

To obtain a Parental Order, at least one of the Intended Parents must be biologically related to the child.

It is important to remember that in both cases the surrogate will be the child’s legal parent at the time of the child’s birth.

Following the birth, there is a legal process - the parental order process - to transfer legal parenthood from the surrogate to the IP(s).

It is important for the Surrogate and Intended Parents to seek legal advice as to the implications, consequences, and potential issues of entering into a Surrogacy Arrangement, and ideally prior to the fertility journey commencing.

Altruistic Surrogacy is legal in the UK if the correct procedures are followed, but commercial Surrogacy is not.

It is a criminal offence:

• To advertise that you are looking for a surrogate or willing to act as a surrogate;
• For third parties to advertise that they facilitate surrogacy (although there are some exemptions for not-for-profit organisations);
• For third parties to negotiate the terms of a surrogacy agreement for any payment (for example a solicitor cannot assist with agreeing the terms).

Furthermore, Intended Parents are only allowed to pay the surrogates ‘reasonable expenses.’

If you use a surrogate, they will be the child’s legal parent at birth. If the surrogate is married or in a civil partnership, their spouse or civil partner will be the child’s second parent at birth, unless they did not give their permission. Legal parenthood can be transferred by parental order or adoption after the child is born.

If there is disagreement about who the child’s legal parents should be, the courts will decide based on the best interests of the child.

Often the Intended Parents and Surrogate will enter into a Surrogacy Agreement. Such an agreement is helpful in setting all parties understanding and agreement on a range of issues.  A Surrogacy Agreement is a non-legally binding statement of intention about how the arrangement will work and the commitment that each party is making to the other in advance of the surrogacy commencing, to ensure there is effective communication and mutual understanding between the Intended Parents and Surrogate. It is vital to note that a Surrogacy Agreement it is not legally enforceable or binding on the Court in this jurisdiction.

No matter what the biological position and where the child is born, the surrogate will always be recognised as the legal mother of the child, and if she is married her spouse will be recognised as the child’s legal father/second legal parent.

If your surrogate is single, one of the intended parents may be named on the initial birth certificate but this will depend on a number of factors, including whether your child was conceived at a fertility clinic.

This means that as intended parents will not be fully recognised as your child’s legal parents at birth, and so you will need to apply for a parental order once your child has been born.

• Decide if surrogacy is right for you
• Decide which surrogacy organisation to work with
• Choose a surrogate, and egg or sperm donor if necessary
• Create Embryos
• All parties should seek counselling and legal advice
• Get to know each other and agree a surrogacy arrangement
• Conception (fertility clinic)
• Maternity
• Birth of child
• Assume care of the child following birth
• Registering the birth
• Transfer of legal parenthood by way of Parental Order
• Obtain new birth certificate
• Support child to understand the circumstance of birth

When a child is born through surrogacy, the Intended Parent should apply to the family court for a parental order.

The parental order transfers legal parenthood from the surrogate (and her spouse or civil partner, if she has one) to the Intended Parents. It can only be made with the surrogate’s consent.

The parental order process takes place after birth and involves the family court, and a court-appointed social worker. Parental order applications are typically heard by magistrates. They will be heard by a High Court judge if the child is born overseas or there are questions over whether the parental order criteria are met.

The vast majority of surrogacy cases in England and Wales are straightforward and it is rare that a parental order to transfer parenthood to the Intended Parents is not considered in the best interests of the child.

The criteria for a parental order are:

• IP(s) must be over 18 years old
• IPs may be married, in a civil partnership or living as partners in an enduring relationship or they can be an individual regardless of relationship status
• the surrogate, and her partner if they are married or in a civil partnership, must give consent (no earlier than 6 weeks after the birth of the baby)
• the child must have been conceived artificially and be genetically related to one of the IPs, or the IP if an individual applicant
• the child must be living with the IP(s)
• IP(s) must apply within 6 months of the birth of the child
• At least one of the IPs in a couple, or the IP if an individual applicant, must be domiciled in the UK
• the surrogate should be paid no more than reasonable expenses, unless authorised by the court

If all the legal criteria are met, the court’s paramount consideration in making the parental order is the child’s lifelong welfare.

An outline of the steps to obtain a parental order:

1. Application to the court by the Intended Parents

IP(s) must submit a completed parental order application form to the court within 6 months of the child’s birth. The court will usually ask IP(s) to submit a statement following the first hearing which can be prepared in advance; this should set out how they fulfil the parental order criteria and provide supporting evidence.

2. Appointment of a Parental Order Reporter by the court

Once the application for a parental order has been made, the court will ask the Children and Family Court Advisory and Support Service (Cafcass in England) to provide a parental order reporter.

3. Work completed by the parental order reporter an report produced

4. Court hearings on the parental order application arranged by the court

The court is responsible for setting the timetable for parental order proceedings. Generally the court will list an initial ‘directions’ hearing to check that the required evidence is available and in order. If there are complications, there may be more than one directions hearing. The final hearing is where the decision regarding the parental order will be made. In some courts, the initial directions may be given in writing so that there is only one court hearing

In England and Wales, the surrogate will continue to be the legal mother of the child until a parental order is obtained. A parental order requires the surrogate’s consent.

This means that at any point up until a parental order is granted, the surrogate could decide to keep the baby.

There is no way of providing a guarantee that the surrogate will give her consent to a parental order. Surrogacy agreements will not be enforceable.

The most common overseas destinations for intended parents who are considering a surrogacy arrangement are the USA, Canada, Ukraine, Greece and Georgia.

In many overseas surrogacy destinations, the Intended Parents will be recognised as your baby’s legal parents at birth and in some jurisdictions, even pre-birth. This is not the case under UK law. Irrespective of who is the genetic parents and the laws of the country the child was born, in England and Wales, the surrogate will still be regarded as the legal mother, and if she is married, her spouse as the father or second legal parent.

This means that potentially Intended Parents could have a birth certificate from another jurisdiction naming them as the parents that is not recognised in the jurisdiction of England and Wales.

For Intended Parent/s to be recognised as the legal parents in this jurisdiction, they will need to apply for a parental order.

Intended Parents should make the application for a parental asap. They do not need to wait six weeks to apply (as with domestic surrogacy births) in order to commence the application asap so that the child can return home to England or Wales as soon as possible.

Arrangements will depend heavily on the country the baby was born.

You will need an Immigration Solicitor with a specialising in Surrogacy  to advise and assist in developing a strategy to ensure the baby can return to the UK post birth asap.  

We will advise you on the best option for you and can provide guidance on how to secure comprehensive immigration advice.

Single parents who have had a child born through surrogacy can now apply for parental orders and obtain a UK birth certificate.

Until 2019 only couples could apply for a Parental Order.

It is still the case that the single Intended Parents must be genetically related to the child in order to be able to be successful in a Parental Order application.