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Surrogacy and the Law

View profile for Wendy Parks
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Surrogacy is the process by which a child is carried through pregnancy by a woman who has entered into an arrangement before she started to carry the child, with the intention that at birth, the child and parental responsibility for that child will be transferred to another person or persons and that those persons will become the legal parent(s) of that child.

Surrogacy arrangements are most often made by heterosexual couples with fertility issues, or same sex couples. A surrogate mother is the person who carries the child and there are two common forms of surrogacy which include:

  • Partial or Traditional Surrogacy -this is where the surrogate mother is also the child's genetic or biological mother.  The child will be genetically related to the father (or a sperm donor) and to the surrogate mother.
  • Total or Gestational Surrogacy - this is the process where the surrogate mother is genetically unrelated to the child.  The embryo is carried to the surrogate and can be created from:
  1. A genetic mother's egg and a genetic father's sperm
  2. A donor egg and genetic father's sperm
  3. A donor egg and donor sperm.

If you wish to use surrogacy services in the UK, there are very particular laws and regulations governing the procedure.  The key legislation includes the Surrogacy Arrangements Act 1985, the Human Fertilisation and Embryology Act 2008, the Human Fertilisation and Embryology (Parental Orders) Regulations 2010, Part 13 of the Family Procedure Rules 2010 and Section 1 of the Adoption and Children Act 2002.

For example, in England and Wales, the surrogate mother can only be paid reasonable expenses and may not profit from the arrangement.  Section 2(1) of the Surrogacy Arrangements Act 1985 specifically prohibits commercial arrangements.

It is essential that legal steps are taken to ensure that you and your partner obtain legal parental custody over the child as in English law, the person who gives birth to a child is the legal mother, regardless of whether she has any genetic or biological link to the child.

A surrogate mother cannot simply surrender her parental responsibility or parenthood.  If the surrogate  mother is married, her husband will be treated as the father.  This is until and unless this is altered by order of the Court.

The permanent transfer of legal parenthood and parental responsibility can only be brought about by order of the Court, with either an adoption order, or a parental order.

A parental order, like an adoption order is transformative and the effect in law, will be that the child will be treated as their child, (the commissioning couple) and not the child of any other person. 

With same sex couples, both members of that couple can now be included on the child's birth certificate.

Points to Consider:

  • Is surrogacy legal in your country of choice? In some countries, it is illegal, and in some countries, it is completely unregulated.  There are no international conventions, treaties or reciprocal arrangements in force that govern surrogacy.  Orders made abroad are not recognised nor are they enforceable in the UK.  Applications that must be issued in England and Wales may have to go to different courts depending on whether or not the child was born in England or Wales.
  • Do you know all of the laws and regulations relating to the surrogacy services you wish to access?
  • What will be the on going status of the surrogate?
  • Have you established that your surrogate understands the arrangements?  She absolutely must give free and unconditional agreement with full understanding of any orders to be made.
  • What nationality or citizenship will your child hold or acquire?  It is crucial that prospective parents obtain legal advice here and in the country where the child is born.
  • Have you got the correct documentation to bring the child home?  Will the child be given permission to enter the UK?
  • Have you planned how to obtain legal parental status?
  • Have you budgeted correctly?

All couples contemplating surrogacy should seek as much information as possible and from all jurisdictions before any irreversible steps may be taken. 

Same sex couples who hold nationalities or rights of residence in other jurisdictions must seek specialist advice within these jurisdictions as to their status and recognition afforded to their relationship both with each other, and to the child.  A point to remember is to always keep an accurate documentary record of all steps taken and all arrangements in place.

The interests of the child will always be paramount and it is always advisable to ensure strict compliance with the letter of the law, and the spirit of the legislation so as to avoid procedural flaws or unauthorised actions.

This is not legal advice; it is intended to provide information of general interest about current legal issues.