International Surrogacy

While UK surrogacy laws are currently under government review, it remains illegal here to enter into a commercial surrogacy agreement with a surrogate. Surrogacy itself is not illegal in the UK but only reasonable expenses can be paid and no contract between the parties will be recognised in the courts, meaning the arrangement is not enforceable.

In this jurisdiction, the wait to match with a surrogate can be long. Intended parents – single sex, heterosexual couples and single individuals – therefore tend to look abroad to places such as some surrogacy friendly destinations within the United States where commercial surrogacy is legal and well regulated, protecting all parties.

Most intended individuals will use a reputable agency overseas that connects intended parents with suitable surrogates. Both parties ‘choose’ the other and some develop relationships that continue after the birth, while for others that relationship ends at the birth.

The matching agency will work alongside your foreign fertility lawyer to ensure all the necessary paperwork is in place and most offer emotional and practical support to both parties as well as handling payments and fees. Your UK lawyer will also work with his/her foreign counterpart to protect your interests.

The benefit for UK domiciled intended parents entering into a commercial agreement with a surrogate in some states in the US is that all parties should have the benefit of US independent legal advice and US Parentage Orders can be granted within a short space of time, and sometimes pre-birth. However, as overseas Parentage Orders (and foreign birth certificates) are not recognised by the UK courts, intended parents will need to bring an application for a UK Parental Order so that they can extinguish the parental rights of the surrogate and secure their own legal parenthood in respect of the child.

The surrogate must consent to the making of a Parental Order, and in the absence of this, and with good reason, the Court can be asked to proceed without this consent.

Intended parents must work with the relevant immigration authorities to ensure that there are no difficulties in leaving the surrogacy destination with the child and entering the UK.

The law states that intended parents must apply for a Parental Order within 6 months of the child’s birth.  Although it has been known for the courts to exercise discretion to allow later applications, this should not be relied upon.