What is surrogacy and is it legal in the UK?
Surrogacy is where a woman (known as the surrogate) agrees to gestate a child on behalf of a couple who would like to become parents (known as the ‘intended parents’). After the baby is born, parental status is transferred to the intended parents.
There are two types of surrogacy:
traditional - the surrogate is artificially inseminated but uses her own egg to conceive
host/gestational - this involves IVF and uses the egg of a donor or another person
The general procedure of surrogacy is legal in the UK. However, there are certain rules:
surrogates are not allowed to advertise their willingness to be a surrogate
it is illegal for intended parents to advertise that they are seeking a surrogate
it is a criminal offence to broker a surrogacy arrangement on a commercial basis
Furthermore, any surrogacy agreement is unenforceable in a British court.
Who are the legal parents of a surrogate child?
The woman who gives birth to the child (ie the surrogate) is considered to be the legal mother. If the surrogate is married or has a civil partner, this person will be the child's legal father or 'second parent' - otherwise, the genetic father can be considered the legal father if he is named on the birth certificate. If intended parents are using a third party sperm donor (eg in the case of gay female couples) then neither of them will be considered legal parents upon the birth of the child.
Aside from the case of an intended father who is also the legal father (as described above), in order for intended parents to become legal parents, they must apply for a parental order.
Are surrogacy agreements legally enforceable?
Although British courts can take into account a surrogacy agreement in the case of any dispute, they are not obliged to enforce it. As such, surrogacy agreements are not legally binding in the UK.
How can people who use a surrogate apply to become legal parents?
The most common way to transfer legal parenthood from the surrogate to the intended parents is to apply for a parental order. The following conditions must be met in order for an application to be successful:
there must be a genetic link between at least one of the intended parents and the child
the intended parents must be married, in a civil partnership or living together
the child should be living with the intended parents
the parents should reside permanently in the UK
A parental order application must be submitted within six months of the birth of the child in England and Wales. In Scotland you need to fill out the Parental Order Form Scotland, however as this is a complex process, you are advised to instruct a solicitor to act for you. If the intended parents are not eligible for a parental order (eg because they are single or not genetically related to the child) then adoption can be considered.
Intended fathers who are named on the birth certificate will generally be considered legal fathers if the surrogate is not married or in a civil relationship.
What happens if the child is born abroad?
If a British surrogate gives birth abroad, a parental order can only be applied for if both intended parents are living in the UK. In this case, the child will require a visa to enter the UK.
In the case of foreign surrogates, the situation will also depend on the laws of their country.
Can a single person become a parent via surrogacy?
Single parents can still become legal parents when using a surrogate arrangement. However, rather than applying for a parental order, they will need to adopt the child.