What is surrogacy?
Surrogacy is where a woman carries a child for intended parents and relinquishs her parental status upon the birth of the child. This is commonly an option for male same-sex couples who wish to have a child together without sharing responsibility with the child’s mother/s.
Surrogacy and the law
Surrogacy arrangements (involving opposite-sex couples, single men, and same-sex couples) are legal in the UK, however the law prevents arrangements being brokered on a commercial basis, and makes it an offence to advertise for a surrogate mother.
The UK's close regulation of surrogacy can make travelling abroad seem attractive, since surrogates and donor eggs may be more widely available in certain countries. However, it is important for 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 legal advice.
Under English law, the surrogate 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. This excludes the intended father(s) 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’ 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, wife or civil partner), and granting full parental status to the applicants.
Following the grant of a parental order, the child will be issued a new birth certificate naming the applicants as the child’s parents. Same-sex couples are able to apply regardless of whether or not they are civil partners or married, but they must be in a relationship. Single men remain ineligible.
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.
- At least one of the applicants is domiciled in the UK.
- The child is in their care at the time of the application.
- The surrogate mother (and her husband, wife or civil partner) consent fully and freely to the order being made.
- 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.