Surrogacy Law in the UK

Surrogacy is the process by which another woman ('the Surrogate') carries and gives birth to a baby ('the Child') for other persons ('the Intended Parents'). Further information on the surrogacy process and the types available can be found here.

The legal position

Surrogacy is a legal but restricted practice in the UK.  Surrogacy contracts are not contractually binding. Surrogacy arrangements between intended parents and surrogates are therefore informal and based on trust.  It is also illegal to advertise for a surrogate mother or to advertise oneself as a prospective surrogate mother 'so as to be seen or heard in the UK'.

There is a public policy restriction against commercial surrogacy in the UK.  Surrogacy law expects no more than reasonable pregnancy related expenses to be paid to a surrogate unless retrospectively authorised by the English Family Court.

Legal parenthood

Under English law, the Surrogate will be the legal mother of the Child at birth, on the basis that she carried and gave birth to the Child conceived artificially.  This will be the case even if the surrogate is not genetically related to the Child.

The Surrogate's husband (or civil partner) will be the Child's legal father/second legal parent at birth unless it can be shown he/she did not consent to the Surrogate's artificial conception.  This assumes the Surrogate's husband's sperm was not used to create the embryo carried by the Surrogate.  He/she will also acquire parental responsibility for the Child at birth.  He/she will retain legal fatherhood/parenthood and parental responsibility for the Child until, and unless, this is extinguished by Court Order.

The Surrogate will automatically be treated as the Child's legal mother with parental responsibility until, and unless, that situation is altered by Court Order. The Surrogate cannot simply 'surrender' her legal parenthood or parental responsibility.

The type of Order that would be required depends on the circumstances, and is subject to certain conditions being met.  In summary:

 

Type of Order

Situation

Consequence

Parental Order

At least one of the Intended Parents is genetically related to the Child.

 

Legal parenthood and parental responsibility is conferred on the Intended Parent(s).

The Surrogate (and her husband if applicable) is no longer the legal parent of the Child.

Adoption Order

Neither of the Intended Parents are genetically related to the Child, Intended Parent(s) must use a registered adoption agency throughout the surrogacy process.

 

 

Parental order

A parental order is a post birth court order granted by the English Family Court for a surrogate born child.  It is intended to be a full and permanent legal order.  It reassigns legal parenthood and parental responsibility from a surrogate (and her spouse or civil partner) to the Child's intended parents and extinguishes the legal rights and responsibilities of the surrogate parent/s for the Child.

There are a number of serious legal implications if intended parents do not obtain a parental order for a surrogate born child (subject to eligibility and in the absence of other family court orders) which include:

  • One or both intended parents will lack legal parenthood for the Child.
  • One or both intended parents will lack parental responsibility for the Child.
  • The Child will lack an automatic right of inheritance from one or both intended parents.
  • One or both intended parents may not be financially responsible for the Child.
  • The Child will lack a British birth certificate naming both intended parents as his/her parents.

Parental order process

Intended parents must meet specific legal criteria prescribed by s54 Human Fertilisation and Embryology Act 2008 to be eligible to apply for a parental order (the bespoke legal solution for surrogacy in the UK) in the English Family Court, namely:

  • Intended parents must be over 18 years of age.
  • Intended parents must be married, in civil partnership or in an enduring family relationship with their partner.
  • One or both intended parents must be domiciled in a part of the UK or in the Channel Islands or the Isle of Man.
  • The gametes (eggs or sperm) of one or both intended parents must be used to conceive the Child.
  • Intended parents must apply for a parental order within six months of the Child's birth (although in certain circumstances the Court can extend this on a case by case basis).
  • The Child must be in the care of the intended parents at the time of issue of a parental order application and at the time the order is granted.
  • The Surrogate and her spouse (or civil partner) must consent fully and freely to the grant of a parental order, with the Surrogate's consent not being valid until a minimum of 6 weeks after the birth.
  • Intended parents must pay no more than 'reasonable pregnancy related expenses' to a surrogate unless the English Family Court authorises a commercial payment

The English Family Court must also be satisfied more generally that a parental order is in the best interests of the Child.

A parental order application should be submitted to the English Family Court within six months of your surrogate child's birth.  You will need to complete application Form C51 and send this to court together with the documents stipulated on the form and a cheque to cover the court fee.  It is sensible to contact the court and check the current court issue fee as this can change from time to time.  The court will then issue your parental order application and allocate it a court number.  Your Surrogate (and spouse if applicable) will need to complete and sign Form C52 and return this to court confirming they have received a court issued copy of your parental order application and they consent to the court granting a parental order.

If you meet the legal criteria and there are no concerns about payments made to your surrogate the court process is designed for intended parents to represent themselves at minimal cost.  In this instance, your parental order application may take not less than two to four months to be determined (but could take longer depending upon court and parental order reporter availability) and will likely require one to two court hearings.

The English Family Court may list your case for a case management hearing.  It will appoint a parental order reporter to carry out some checks and prepare an independent written report.  Your parental order reporter will meet with you and your child/ren at home and separately with your Surrogate and any spouse.  The Court will then usually list your case for final hearing at which it will make a decision.  It is normally expected you will bring your child/ren to court.  If a parental order is granted, the court will arrange for you (intended parents) to be sent by post a British birth certificate naming you both as your child's parents.

If there are any concerns about your eligibility for a parental order or more complex legal issues arise, then your case could be transferred to the English High Court (although these may be downgraded at some future point).  There is then an involved and prescribed set of documents which the court will expect you to produce in support of your parental order application. There is then usually one to two court hearings spanning a period of not less than four to nine months depending upon the court's timetable and time of year.  There will then be a final hearing at which the court will reach a decision in the best interests of the surrogate born child/ren.  Legal issues and concerns which can trigger the transfer of a case to the English High Court can relate to questions about domicile status of intended parents, consent of a surrogate and any spouse to the grant of a parental order, disputes over care of a surrogate born child and nature and quantum of payments to a surrogate.  If more complex legal issues arise, it is advisable to obtain specialist legal advice.

If you are ineligible for a parental order in the English Family Court or arrangements for your surrogate born child are disputed, you should obtain specialist legal advice about your options for resolving matters and securing alternative legal status.  Other legal options, for example a child arrangements order, are not the bespoke legal solution for surrogacy in the UK and do not offer the same level of legal status as a parental order but can provide some limited legal protection.

You can find out more about surrogacy, fertility and family law by visiting Michelmores' specialist website or by contacting Louisa Ghevaert by email louisa.ghevaert@michelmores.com or by telephone +44 (0)207 7886382.

Please click here to read our related article on the Employment rights of surrogates.