Surrogacy may be suitable for women with certain medical conditions that make it difficult and/or dangerous for them to become pregnant, carry the pregnancy and give birth. Surrogacy is also a feasible option for male same-sex couples who want to have a family and for people without a partner.
There are two different types of possible surrogacy arrangements:-
- Full surrogacy – a host/gestational surrogacy arrangement: this is where the surrogate has no biological link to the child. Instead, the intended parents may be the biological parents of the child or the child may be conceived with either eggs or sperm from a donor; and
- Partial surrogacy – a straight/traditional surrogacy arrangement: this is where the surrogate is the child’s biological parent and she uses her own eggs, together with the sperm from the intended father or from a donor.
Although surrogacy is legal in the UK (albeit subject to some restrictions), surrogacy agreements are not legally enforceable.
In the UK, surrogacy is treated as an altruistic exercise. As a result, it is illegal to pay a surrogate anything other than their reasonable expenses. In contrast, in other places/countries (such as in certain US states) commercial surrogacy is legal. Consequently, using a surrogate abroad can be complicated as legal arrangements differ from country to country and as a result, the act of bringing the child back to the UK can sometimes be both a challenging and lengthy process. It is therefore always best to ensure that before taking any steps of substance, you are fully informed as to the holistic legal position.
The Legal Rights of Intended Parents and Surrogates
If using either of the above two surrogacy arrangements in the UK, the surrogate will be the child’s legal parent at birth. Furthermore, determining who the second legal parent is at birth will depend on individual circumstances. By way of example, unless they have not provided their permission (i.e. they did not consent to the surrogate’s treatment), if the surrogate is married or in a civil partnership, their spouse or civil partner will automatically be the child’s second parent at birth.
Conversely, if the surrogate is single, they will still be the child’s legal parent at birth, with the man providing the sperm (if he wants to be the father) automatically being the second legal parent at birth. However, if certain criteria is met, it is possible for the surrogate to nominate the intended mother or non-biological father as the second legal parent.
Following the child’s birth, legal parenthood can be transferred from the surrogate by way of either:
- A parental order: such an order extinguishes the parental rights of the surrogate (and her spouse, subject to the above) and confers the parental rights onto the intended parent or parents. The law previously only allowed two people to apply for a parental order; however, it can now be applied for with a partner or by one party alone, but must be applied for within six months of the child’s birth. That said, there have been cases where the time limit has been extended. In the recent case of Re X, Y and Z (Children-Parental orders- time limit) [2022] EWHC 198 (Fam), although the parental order application was made outside of the six month time-limit, Mrs Justice Knowles applied her discretion to make the order on the basis that it was in the children’s best interests.
The legislation says (although there has been examples of exceptional circumstances), that if applying for a parental order alone, the applicant must be genetically related to the child. In addition, the applicant must (i) have the child living with them; and (ii) reside permanently in the UK, the Channel Islands or the Isle of Man.
If applying with a partner, one of the parties must be genetically related to the child. In addition to having the child living with them and residing permanently in the UK, the Channel Islands or the Isle of Man, the applicants have to be married, civil partners or living as partners.
- Adoption order: if neither applicant is genetically related to the child, adoption is the only way to become the child’s legal parent(s).
Once a parental or adoption order has been secured, the surrogate will have no further rights or obligations to the child. What should however be stressed is that even if you are named on a foreign birth certificate as the legal parent(s) of the child, you will still have to apply for a parental or adoption order upon returning to the UK. As mentioned above, this is because until you have a parental or adoption order, the law in the UK identifies the surrogate as the legal parent(s).
Should there be any disagreement in respect of who the child’s legal parents should be, the matter will have to be referred to the Court, who will make a decision based on the child’s best interests.
Proposed Surrogacy Law Reforms
Many people consider the law on surrogacy in the UK to be archaic and not fit for purpose. The Surrogacy Arrangements Act 1985 establishes the majority of the legislation, with the more recent addition of the Human Fertilisation and Embryology Act in 2008. However, as a result of various advances, as well as a shift in public opinion, The Law Commission of England and Wales has acknowledged that there are problems with the current law.
After a 2018 pre-consultation research phase, the Law Commission published their provisional surrogacy law reform proposals in summer 2019 and ran a public consultation until autumn 2019. The Law Commission are now in the policy development stage, during which they are considering the replies to the consultation.
What are the provisional recommendations?
- New routes to becoming a legal parent, which will allow intended parents to be legal parents from birth;
- Changes to the way UK surrogacy is regulated; and
- An open discussion about payments to surrogates.
For the purposes of this article, the below discussion focuses on provisional recommendation (1): New routes to becoming a legal parent, which will allow intended parents to be legal parents from birth.
The Law Commission have provisionally proposed that there should be three possible routes to establishing legal parenthood:-
| What are the new routes to becoming a legal parent? | What does the new route entail? | |
| 1 | Route 1: the new ‘pathway’ for UK surrogacy, which will allow intended parents to be legal parents from birth | Where certain steps have been followed before conception and the surrogate does not object after the birth, the Law Commission proposes that the intended parents should be the legal parents from birth.
To qualify for this route, the parties must – prior to conception – (i) make a written surrogacy agreement; (ii) obtain independent legal advice; and (iii) have implications counselling. The arrangement must also be approved by a regulated surrogacy organisation or fertility clinic, which must complete a number of checks and provide information to a new national surrogacy register for the child in the future. After the birth, the intended parents will have to wait for a period of time (c. six weeks) and can thereafter register the birth assuming that the surrogate has not exercised her right to object. |
| 2 | Route 2: post-birth parental orders for UK surrogacy | The Law Commission proposes that, where the ‘pathway’ criteria is not met, the surrogate will remain to be the legal mother at birth. The existing law will remain so that intended parents can apply for a parental order after the child’s birth, although they will share parental responsibility with the surrogate during the application process and the surrogate’s spouse will no longer be a legal parent.
The Law Commission have also asked: (i) whether the family court should be able to waive the surrogate’s consent if she objects; (ii) whether the six-month time limit should be abolished; and (iii) whether parents should be able to apply on the basis of habitual residence, as well as domicile. |
| 3 | Route 3: parenthood for children born through international surrogacy | The Law Commission proposes that children born or conceived outside of the UK should fall outside the ‘pathway’ for parenthood. However, the UK Government should be authorised to create a list of countries, which it considers to have adequate surrogacy law and safeguards, so that children born in such countries can be automatically recognised as the legal children of the intended parents, on the basis that the proper procedures in the country of birth have been followed.
Where children are born in non-designated countries (or until a list of designated countries is created), the existing law (i.e. the need for a parental order) would remain in place. |
The Law Commission’s final report, expected in spring 2023, will make recommendations as to how UK surrogacy law should change, and provide the Government with a proposed draft Bill. Thereafter, the Government will decide whether to send the draft Bill to Parliament. We must therefore watch this space – but, in the meantime, Judges are interpreting the existing legislation with a wide lens in order to meet the needs of the surrogate born child.
As is apparent, the current UK surrogacy law is not without its complications. If you are however considering this route to parenthood or simply wish further to discuss the option of surrogacy, our specialist family team at Payne Hicks Beach are able to provide bespoke legal advice on how best to navigate this complex area of law.
