What is surrogacy?
Surrogacy is the process where a woman carries a baby for someone or a couple unable to conceive or carry a child.
What types of surrogacy are there?
There are two kinds of surrogacy.
The first is traditional surrogacy. This is where the surrogate has a genetic relationship to the child she is carrying. The surrogate will provide her own eggs as part of the conception process. The sperm shall be provided by the intended father (either in a heterosexual couple, as an individual, or one of a male same-sex couple).
The second is gestational surrogacy. This is where the surrogate has no genetic connection to the child she is carrying. Embryos will be created in vitro, either through using the eggs of the intended mother and the sperm of the intended father, or a donor and the gametes of one of the intended parent(s).
Regardless, the surrogate’s pregnancy must have been as a result of embryo transfer or artificial insemination.
Is surrogacy legal in England and Wales and can I pay someone to be my surrogate?
Surrogacy is legal in England and Wales and there is a legal mechanism for intended parents to become legal parents after birth (see below). Commercial surrogacy is not legal in England and Wales and therefore, you cannot pay someone to be your surrogate if there is an element of profit. However, intended parents may reimburse the surrogate for her reasonable expenses, which may be generously interpreted by the Court.
Surrogacy agreements are recommended so all parties are on the same page regarding arrangements and to facilitate the process. However, these are not recognised by the Court and so are not enforceable contracts. They are statements of intention only. It is also a criminal offence for a third party, such as solicitors, to negotiate the terms of a surrogacy agreement for any payment.
How do I become the legal parent of a child born from surrogacy?
Under English law, the surrogate is the legal mother of the child born to surrogacy as she carried and delivered the child, even if she has no genetic connection to the baby. If the surrogate is married at the time of the birth, her spouse is the other legal parent of the child. If the surrogate is not married, the intended father is usually the legal father if he is the biological father.
Following the birth, the intended parents will need to apply to the Court for a Parental Order that grants them legal parenthood and permanently extinguishes the legal parenthood of the surrogate and her spouse, if any. This will then reflect the intentions of the vast majority of parties involved in surrogacy and is a necessary and important step.
The surrogate and her spouse must freely consent to the making of a Parental Order. There are other criteria that must be satisfied for the Court to grant a Parental Order. Please download a free copy of our Essential Guide to Modern Family here for this list.
Upon the grant of the Parental Order, the child’s birth will be re-registered at the Registry Office and a new birth certificate will be issued naming the intended parents as the legal parents.
Is surrogacy right for me?
Heterosexual couples, same-sex couples and single individuals are all eligible to be intended parents to a child born via surrogacy. One of the intended parents (or the individual intended parent) must be the biological parent of the child born from surrogacy. If neither intended parent is genetically related to the child in question, the intended parents will have to adopt the baby once born.
Whilst surrogacy can be enormously fulfilling for the parties and can bring a much longed-for baby into a family, it can be an emotionally taxing process and expensive for those involved, even where the surrogates and intended parents have a close relationship. It is important to discuss intentions and expectations prior to implantation to optimise the relationship between the intended parents and the surrogate.
Can the surrogate decide the keep the baby?
In practice, this is rare, and very few cases result in difficulties with the surrogate or a surrogate withholding her consent to the intended parents becoming the legal parents of the child. Our specialist surrogacy law team can advise you about the various options available in these circumstances.
In the proposals set out in the Law Commission’s Final Report, the surrogate will not be required to give her consent provided certain conditions are satisfied. If, however, the surrogate withdraws her consent between implantation and birth, she will be recognised as the legal parent, and the intended parents will need to apply for a parental order.
There are also proposals for the current application process for a parental order to be revised, and these include the Court having discretion to waive the requirement to obtain the surrogate’s consent. These are only proposals, however, and do not reflect the current law on surrogacy.
It is recommended that intended parents and surrogates seek information and guidance from a specialist lawyer and their fertility clinicians. Parties should also obtain implications therapy to consider whether they are emotionally prepared for the process and all possible outcomes before embarking on surrogacy.
How can I find a surrogate?
Regulated non-profit surrogacy organisations can assist intended parents in finding a surrogate and vice versa. These organisations can provide guidance, support and medical and DBS checks for its members.
It is a criminal offence under the Surrogacy Arrangements Act 1985 to advertise that any person is or may be willing to be a surrogate or is looking for a surrogate. It is also a criminal offence for third parties to advertise that they facilitate surrogacy, but there are some exemptions for not-for-profit organisations. Therefore, if you require assistance finding a surrogate, do contact one of the recognised agencies.
Please download a free copy of our Essential Guide to Modern Family here for more information.
Sarah Williams and Evelyn Collins are experienced surrogacy lawyers and can advise and represent parties in respect of applications for and the grant of Parental Orders. For further information, please contact Sarah Williams, Head of Modern Family Law or Evelyn Collins, Associate in the Family Department or, alternatively, telephone on 020 7465 4300.
