Surrogacy in the UK can seem like a legal minefield, especially when you’re considering the process for the first time.
Bethan Carr, an expert surrogacy lawyer at Penningtons Manches Cooper, shares a wide-ranging overview of the questions – and answers – she commonly deals
with when supporting intended parents
What is surrogacy and are there different types?
Surrogacy is when a person carries a pregnancy and gives birth for another person/couple. There are two types of surrogacy, traditional (or straight) surrogacy and gestational (or host) surrogacy.
Traditional surrogacy is where the surrogate uses her own eggs and the sperm of one of the intended parents. Conception will take place at home (via artificial insemination) or at a fertility clinic.
Gestational surrogacy is where the surrogate has no biological link to the baby. In these circumstances the intended parent/s will use their eggs and/or sperm. They can use an egg donor or a sperm donor, but not both, if they want to apply for a parental order. Conception has to take place at a fertility clinic.
In both cases, the surrogate will be the child’s legal parent at birth.
Is surrogacy legal in the UK?
It is legal to enter into a surrogacy arrangement in the UK but there are some restrictions that are important to bear in mind.
- It is a criminal offence to advertise that you are looking for a surrogate or that you are looking to act as a surrogate. This can make it difficult for intended parents and surrogates to find one another, but also for the non-profit making organisations in the UK to grow their numbers of surrogates.
- It is also a criminal offence for a third-party organisation to receive payment for arranging a surrogacy journey, although there are some exemptions for non-profit making organisations.
- Finally, it is a criminal offence for organisations to match or broker surrogacy arrangements in the UK (this is the case even if it is an international surrogacy agreement). While there has not been a prosecution under this offence, it does mean that lawyers are not able to draft or negotiate the terms of a surrogacy agreement.
How do I find a surrogate in the UK?
There are several surrogacy agencies/not-for-profit surrogacy organisations in the UK. These are currently Surrogacy UK, My Surrogacy Journey, COTS, Brilliant Beginnings and Nappy Endings.
They all work in different ways and I always suggest that intended parents take a look at their respective websites in the first instance to see what they can each offer and what feels most comfortable.
Are surrogacy arrangements legally binding?
Surrogacy agreements are not legally binding in the UK – this means that intended parents and surrogates have to rely on trust when entering into an agreement.
Having said this, it is almost always a good idea to put an agreement in place. While this is not legally binding, the exercise of putting a document together which outlines your respective intentions, enables you to talk through everything and have the more difficult discussions about things like expenses, to make sure you are all on the same page at the outset.
Who goes on the first birth certificate?
No matter what the biological position and where the child is born, the surrogate will always be recognised as the legal mother of the child under UK law. If she is married her spouse will be recognised as the child’s legal father/second legal parent.
If a surrogate is single, one of the intended parents may be named on the initial birth certificate, but this will depend on a number of factors, including whether your child was conceived at a fertility clinic in the UK and what HFEA forms have been signed. Our specialist surrogacy law team can advise you on the various HFEA forms you can sign prior to conception.
Ultimately the legal position in the UK means that as intended parents you will not be fully recognised as your child’s legal parents at birth. You will therefore need to apply for a parental order once your child has been born.
What is a parental order?
This is the UK legal solution to a surrogacy arrangement. A parental order is an order from the UK Family Court which extinguishes the status of the surrogate and her spouse, if married, and reassigns their parentage to the intended parent/s. A new birth certificate will be issued recording the correct position.
There are a number of criteria to fulfil:
- The child must be conceived through artificial insemination and carried by a surrogate.
- At least one of the intended parents must have a biological link to the child (or in the case of a single applicant, they must be the child’s biological parent).
- The intended parents must be a couple, either married, in a civil partnership or living in an enduring family relationship. There is also now the option to apply as a single person since the law changed in January 2019.
- Intended parent/s must apply within 6 months of the birth (in practice, there is some flexibility with this, but it very much depends on the circumstances).
- The child must have their home with the intended parent/s and the intended parent (or at least one of the intended parents if applying as a couple) should be domiciled in a part of the UK, Channel Islands or the Isle of Man.
- The intended parent/s must be over the age of 18.
- The surrogate (and if she is married, her spouse) must consent to the making of a parental order fully, freely and unconditionally, and not less than six weeks after the birth.
- No more than reasonable expenses must have been paid to the surrogate (or the court must be prepared to authorise the payments retrospectively).
Generally, applications take between 4-12 months to be dealt with by the Family Court, and you can usually expect to attend two court hearings.
Can I pay a surrogate?
The short answer is yes.
However, the law says that you should only pay reasonable expenses. This term has never been defined in law and as a result a grey area has developed where payments of £10,000 to £18,000 are regularly accepted by the Court as being for a surrogate’s reasonable expenses. Receipts are rarely requested, but you will need to show exactly what was paid, so it is a good idea to keep clear records and be completely upfront and honest about all payments.
It is important to mention that the court does have the power to authorise payments to a surrogate if they are more than reasonable expenses, and this is often relevant in international surrogacy cases.
What if a surrogate doesn’t agree?
While this is rare, it is important to be aware that the surrogate will continue to be the legal mother of the child until such time that a parental order is granted, and the Court is unable to make a parental order unless a surrogate (and her spouse) were to consent.
Should this scenario occur, a different application could be made to the Family Court, who will ultimately decide what is in the best interests of the child.
What about my overseas options?
Sadly, there is still a shortage of surrogates in the UK, which means that intended parent/s can often be left waiting for quite some time to find a surrogate who is willing to help them.
It is for this reason that people often start to consider their international options.
The most common destinations for UK intended parents exploring surrogacy overseas are the US, Canada, Ukraine and Georgia. Each destination is different and brings different considerations for intended parent/s. For example, there are various restrictions in countries such as Ukraine and Georgia which limit who can pursue a surrogacy arrangement there.
Wherever you go, the key is to do your homework and understand the legal framework in both the country of birth, and the position in the UK. You will need to consider how you are going to travel home with your baby and ensure that everything is being done safely and ethically.
The most important thing for intended parent/s to be aware of is that even if you are recognised as a legal parent in the country your baby is born in, this won’t be recognised under UK law. You will therefore still need to apply for a parental order to ensure your status as a family is secure.
What if I have more questions?
Every surrogacy journey is different and there are often nuances, legal issues and practical elements for intended parent/s to consider.
The surrogacy team at Penningtons Manches Cooper provide a personalised approach for intended parents planning a surrogacy arrangement, both in the UK and overseas. We will provide comprehensive guidance during the planning stages and throughout the surrogacy process to ensure that you feel completely in control.
We will often involve our immigration team if you are considering an overseas journey so that you have a clear plan to travel home, and we will develop an appropriate strategy to deal with any immigration/nationality issues.
We are also active on Instagram – @thesurrogacysolicitor seeks to raise awareness of surrogacy and make information more accessible for intended parents and surrogates.
If you have any questions, please don’t hesitate to contact us.