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What is surrogacy?
Surrogacy is the practice whereby one woman carries a child with the intention that the child should be handed over at birth (Warnock report).
Types of surrogacy
Partial – this is where the surrogate mother is the genetic mother but the genetic father will be the partner or husband of the proposed mother.
Total – this is where the surrogate mother simply carries the already fertilised egg or is impregnated with a donor egg which is then fertilised.
Who are the legal parents
The mother who gives birth is always treated as the mother in UK law and has the legal right to retain the child in absence of any court order even if not genetically related.
The child’s second parent will be the surrogates husband or partner unless there is a court order or the surrogates husband/partner did not give consent to the surrogacy.
How to become the legal parents
- You must apply to the court for a parental order within 6 months of a child birth (there are some exemptions).
- You must be related to the child.
- Be married, civil partners or living as partners.
- Have the child living with you.
- Be resident permanently in either the UK, Channel Islands or Isle of Man.
If none of the above apply, other options to explore are Adoption & Child arrangements orders.
Using a surrogate abroad
Surrogacy with international elements are complicated as different countries have different rules. It is important to do your homework before embarking on this.
Children born through international surrogacy can still be made subject to a parental order in this country.
Pitfalls
It is illegal to pay a surrogate in the UK except for expenses.
Surrogacy agreement is not legally binding.
If a child is born abroad to an international surrogate a visa will be required to enable the child to enter the UK.
You cannot apply for a parental order if you are single.
How can we help?
- Provide a letter for your use confirming you understand the legalities and risks (most fertility clinics require this).
- Draw up an agreement so if the surrogate mother changes her mind the court can see the clear intentions of the parties.
- Help you record the expenses you agree to fund to ensure the surrogacy doesn’t fall foul of the rules.
- Ensure the issue of the surrogates partner or husband is dealt with before entering into the surrogacy.
- Help you apply for a parental order.
- Give advice on proposed international surrogacy.
