What is surrogacy?
Surrogacy is where a woman carries a child for intended parents (or a single intended parent) and relinquishes her parental status upon the birth of the child. This is commonly an option for male same-sex couples and single men who wish to have a child without sharing responsibility with the child’s mother/s. It is also an option for single women and female same-sex couples who are unable to carry a pregnancy.
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.
The UK's close regulation of surrogacy can make travelling abroad 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, wife or 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.
Parents 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 applicant/s.
Following the grant of a parental order, the child will be issued a new birth certificate naming the applicant/s as the child’s parent/s. Same-sex couples are able to apply regardless of whether or not they are civil partners or married, but if they are not in civil partners or married they must be living as partners in an enduring family relationship if they wish to apply jointly. Single parents (both men and women) will shortly become eligible to apply for parental orders provided they are the biological parent of their child.* It is important for single fathers, as well as couples and single women, to obtain a parental order since without one their surrogate will remain their child's legal mother and, if the child is born outside the UK, they will only have limited status in the UK to make parental decisions.
To obtain a parental order, the court will have to be satisfied that the following conditions have been met:
- The applicant, or if a joint application, one of the applicants is the child’s biological parent.
- The applicants are over 18.
- The application is made within six months of the birth (or six months of the law changing for single parents who were excluded from applying until 2019*), although there have now been a few cases where late applications have been permitted.
- The applicant, or if a joint application, at least one of the applicants, is domiciled in the UK.
- The child has his or her home with the applicant/s.
- The surrogate (and her husband, wife or civil partner) consent fully and freely to the order being made.
- The surrogate 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.
*The remedial order to change the law is currently going through Parliament and estimated to come into force in February 2019
Our thanks to Natalie Gamble, fertility law specialist with NGA Law, for the information provided on this page.
Updated October 2018
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