By Natalie Gamble, fertility law specialists with Natalie Gamble Associates 

Surrogacy is the process by which an arrangement is made with a carrying mother that she will hand over the child she gives birth to immediately after the birth and relinquish her parental status.  This is an option for gay couples who wish to have a child together without sharing responsibility with the child’s mother/s.

Surrogacy arrangements (involving heterosexual couples, single men and gay couples) are legal in the UK, although the law bars arrangements being brokered on a commercial basis and makes it an offence to advertise for a surrogate mother.  The close regulation of surrogacy in the UK can make travelling abroad seem attractive, since surrogate mothers and donor eggs may be more widely available in certain foreign jurisdictions.  However, it is important for gay couples to be aware that, whether they conceive at home or abroad, English law on parenthood applies.  International surrogacy arrangements can be legally complex and should not be entered into without careful legal advice.

Under English law, the surrogate mother is always treated as the legal mother of a child at birth.  If the surrogate is married or in a civil partnership, her husband/civil partner is treated as the child’s second parent, and this excludes the intended father from having any legal status at birth.  If the surrogate is not married or in a civil partnership (at the time of conception), the biological father will usually be treated as the child’s legal father.

Couples who enter into a surrogacy arrangement may apply to the court within six months of their child’s birth for a ‘parental order’ in order to acquire parenthood.  Parental orders are designed specifically for surrogacy situations and have the effect of extinguishing the status of the surrogate mother (and her husband/civil partner) and conferring full parental status instead on the applicants.  Following the grant of a parental order, the child will be issued with a new birth certificate naming the applicants as the child’s parents.

Under the current law, only heterosexual married couples are eligible to apply for a parental order.  However, as from 6 April 2010, gay couples will also be eligible to apply.  Gay couples will be able to apply whether or not they are civil partners, but they must be in a relationship; single men remain ineligible.

The new rules are specifically retrospective for the first six months, which means that gay couples who are already caring for a child conceived through surrogacy before the new law came into effect (however long ago their child was born) will have until 5 October 2010 to apply for a parental order giving them full and equal parental status and a birth certificate naming them as their child’s parents.

To obtain a parental order, the court will have to be satisfied that the following conditions have been met:

  • one of the applicants is the child’s biological father,
  • the applicants are over 18 and are applying as a couple within six months of the birth (or
    within six months of 6 April 2010 if later),
  • at least one of the applicants is domiciled in a part of the United Kingdom,
  • the child is in their care at the time of the application,
  • the surrogate mother (and her husband or civil partner) consent fully and freely to the order being made, and
  • the surrogate mother has not been paid more than reasonable expenses, or alternatively the court agrees to authorise any payments which have been made.

Surrogacy arrangements are legally complex, and the courts consistently recommend that anyone considering embarking on surrogacy obtains specialist legal advice at the outset.

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