A surrogacy arrangement is where a woman carries a child for another, with the intention that after birth the child's parental responsibility will be met by that other person.
There are different types of surrogacy: full surrogacy – where the commissioning couple's egg and sperm are fertilised outside the womb and implanted into the surrogate mother; partial surrogacy – where the surrogate mother's egg is inseminated using the commissioning male's sperm; it is also possible to use egg donors and anonymous sperm.
At birth, the surrogate mother is treated as the legal mother of the child. Although surrogacy is permissible in English law commercial surrogacy arrangements made in England are illegal. The surrogate mother is only entitled to be reimbursed with the expenses of having the baby which include items like medical expenses and loss of earnings. In the UK, there are some voluntary organisations which are able to help (on a non-commercial basis). It is illegal for any person, other than the intended partners and surrogate, to negotiate a commercial surrogacy, this includes lawyers.
International surrogacy raises highly complex issues of family and immigration Law. The parties must look carefully at the arrangements as a whole, take legal advice in the foreign country as to the legality of the surrogacy arrangement and consider the child's immigration and nationality status and the ability to bring the baby into the UK.After birth the proposed parents can apply for a Parental Order which confers on them the status of legal parents of the child and cancels the birth mother's rights.Since 6th April 2010 when Section 54 of the Human Fertilisation and Embryology Act (HFEA) 2008 came into force, it is now possible for same sex couples to apply for a Parental Order.
Legal parenthood may be granted if the following criteria are satisfied:at least one of the parents must be domiciled in England and Wales; at least one of the parents must be the genetic parent; the child should currently be living with the intended parents; consent to the application has been provided by any other individual with legal parenthood. Please note that this consent can only be provided at least six weeks after the birth of the child; and the surrogate mother has not received remuneration greater than reasonable expenses associated with having the baby.
As part of the process the Courts and Reporting Officer will scrutinise the issues of consent and payments made.