Surrogacy

Surrogacy is the process by which a woman – called a “surrogate” – carries and delivers a baby for someone else, the intention being that after birth the child’s parental responsibility will be met by that other person.

There are two types of surrogacy; traditional and gestational.
Traditional surrogacy is where the surrogate uses her own egg and is the genetic mother of the child. 
Gestational surrogacy is where there is no such genetic connection and the egg comes from a donor. The surrogate will become impregnated with donor sperm and/or egg.
After delivery, the surrogate hands the baby to the intended parent(s).

Both heterosexual and same sex couples may opt for surrogacy. This may be because the woman is unable to conceive or to carry a baby to full term or where the couple are in a same sex relationship and it is physically impossible for them to conceive a child.
In the United Kingdom, the Human Fertilisation and Embryology Act 2008 allows married couples, civil partners, those in an “enduring family relationship” and since 2019 single parents (provided they have contributed their own gametes) to apply for a Parental Order for children born through surrogacy. 

Commercial surrogacy is not itself illegal in England & Wales. However, the provision of fertility and assisted reproduction services is strictly controlled and regulated.  It is illegal to advertise for a surrogate or to advertise a willingness to become a surrogate.  It is illegal for any person (but not the surrogate and commissioning parents) to make arrangements or negotiate a surrogacy arrangement on a commercial basis. 
Accordingly, organisations that assist with surrogacy arrangements in England & Wales are strictly controlled as non-profit entities. Organisations such as agencies or lawyers cannot take part in any negotiations or profit from the arrangement.

In England & Wales, surrogacy agreements are not binding and cannot be enforced. Therefore, to avoid uncertainty and the withdrawal of consent many intended parents make overseas arrangements in a country where they are binding. For more information about surrogacy abroad, see International Surrogacy.

Under English law, the birth mother (ie surrogate) always has parental responsibility for the child at the time of birth. Furthermore, if she is married or in a civil partnership the other spouse or civil partner will be treated as the other parent. It is important to note that this is the position under English law even if the surrogacy was undertaken overseas and the legal position of that country determines parentage differently.

The Human Fertilisation and Embryology Act 2008 provides the means by which the parental responsibility of the birth mother is removed and all parental rights are vested in the intended parent(s). This is called a Parental Order.
In considering whether or not to grant a Parental Order the Court has to be satisfied that:
– at least one of the intended parents is domiciled in England;
– no more than reasonable expenses have been paid to the surrogate, unless authorised by the Family Court;
– at least one of the intended parents is a genetic parent;
– the child is living with the intended parent(s) at the time of the application;
– all persons with legal parenthood have given full and informed consent after the child is 6 weeks old; and
– the parental order has been applied for before 6 months from birth.

It is not illegal to pay a surrogate mother for her services in the UK. However if a Parental Order application is made, the court will need to authorise any payment made over and above the expenses she has reasonably incurred. 

An application for a parental order is made by the intended parents within 6 months of the child’s birth. The application is served on the surrogate (and her husband) and she must return an acknowledgment of service to the court.
The court will then list a Directions Appointment, at which a reporting officer will be appointed to undertake a welfare enquiry into the living arrangements for the child and the payments made to the surrogate. You will be directed to file a statement setting out your background and evidencing to the Court how you satisfy the criteria for a Parental Order, including dealing with any payments made to the surrogate. 
At the final hearing, if the court is satisfied that all the conditions have been met, the court will make a Parental Order. The Parental Order removes the parental rights of the surrogate mother and you will then have full legal responsibility for your child. 

The vast majority of Parental Order applications go through the Family Court without complications. However problems are most likely to arise where intended parents have not taken legal advice, or familiarised themselves with the eligibility criteria for Parental Orders or have not taken steps to acquire parental rights or legal parentage in respect of their child under English law.
The most common difficulties are:
– Issues of domicile: particularly where neither of the intended parents were born in the United Kingdom, or were born – in the United Kingdom but now live overseas;
– Breakdown of the relationship between the intended parents before a Parental Order has been applied for, or before the order has been made;
– Inability to find the surrogate after the baby has been born;
– Immigration difficulties where the surrogacy has been undertaken overseas.
There is a common and natural concern that surrogates change their mind and want to keep their baby. Thankfully, such cases are extremely rare in the United Kingdom.  It is important, however, always to remember that the Parental Order can only be made with the agreement of the surrogate and her spouse/civil partner. 
If it is not possible for the intended parent(s) to satisfy the statutory criteria for a Parental Order, alternative court orders should be considered to acquire Parental Responsibility for the child under English law.

Intended parents must remember that where a child is born into or joins any family other consequences flow. For example, it will be necessary for the commissioning parents to consider making new Wills and to consider provision for a child in the event that one or both of them pre-decease the child. 
Indeed, some surrogacy agencies require that Wills are put in place before they will commence the surrogacy process, to ensure that adequate protection is in place for the surrogate in the event that something happens to the intended parents during the surrogacy. It will also be important to ensure that any Wills take into account the fact that intended parents may not be considered legal parents of their child until a Parental Order is made.