UK surrogacy law: who needs a lawyer and why?

Feb 27, 2020 | All Articles, Child Law, Surrogacy

Surrogacy should be an exciting process, but at times it can feel daunting too. Getting professional legal advice is one of the easiest things you can do to ensure that your journey is as stress-free as possible. This article covers questions you may have about whether you need a lawyer, the current UK laws on surrogacy, and why you should take time to seek legal advice.

In the UK, surrogacy is legal. Those engaging in it are free to make arrangements between themselves. However, there are rules and specific processes that everyone involved must be aware of and adhere to.

Taking the first steps on your surrogacy journey

We would encourage anyone taking their first steps on the surrogacy journey to do as much research as possible before making any kind of commitment – no matter how small.

Surrogacy can be complex and it can be difficult to know where to start. There is so much misinformation on the internet, and this could cause problems further down the line. So, all of this can be easily avoided by taking professional advice early on.

Do I need a lawyer for surrogacy?

We are fertility and surrogacy solicitors, who have practised for over a decade. Throughout these years, we have seen a multitude of different arrangements both in the UK and internationally, acting for straight, LGBT and single-parent families.

In our experience, getting early legal advice will prevent mistakes from being made. It will also put individuals in a much better position to deal with some of the unforeseen issues that can arise in surrogacy.

It is recommended that all parties involved in the arrangement should seek legal advice. The surrogate, and their partner if they have one, should seek independent legal advice from the intended parents.

Surrogacy contracts are not legally enforceable. It is still advisable to put the agreement in writing, but solicitors cannot arrange, negotiate or advise on a surrogacy contract, and it is against the law for any third party to do so for payment. Therefore, it is important that everyone understands the legal requirements prior to entering the agreed arrangement. Also, it will be the responsibility of the intended parents to obtain a Parental Order post-birth, having obtained the surrogate’s consent.

What is the current law on UK surrogacy?

Current surrogacy laws can be complex to understand, and we are here to help break it down for you.

Parental Orders

A Parental Order is the process by which intended parents become the legal parents of a child born through surrogacy.

In the UK, the legal mother is the woman who gives birth to a child, regardless of any genetic link. If the surrogate is married or in a civil partnership, their partner will be the other legal parent. In order to transfer legal parenthood to the intended parents, an application must be made to the family courts to obtain a Parental Order.

There are certain requirements to making a Parental Order post-birth, and it is vital that the intended parents check that they are able to meet all the criteria, before any transfer of embryo attempts are made.

We have seen intended parents realise far too late that they do not meet the eligibility criteria. For example, when the surrogate is already pregnant or even after their child is born. Whilst we have been able to assist clients in making alternative legal arrangements for their child, it is not a desirable situation to find yourself in.

What happens if I can’t get a Parental Order?

Without a Parental Order, the legal relationship between the intended parents and their child does not exist, and therefore neither intended parent has Parental Responsibility for the child. Therefore, they would be unable to make any major decisions on behalf of the child.

At the early stage of life, this mostly affects the ability of the intended parents to make medical decisions for the child. As the legal mother, only the surrogate (and her partner) can make those decisions. Obtaining a Parental Order is one of the most vital surrogacy steps.

The effects of not making an application for – or not being granted – a Parental Order can follow a child throughout their life, and can be as far-reaching as complications obtaining a British passport, or preventing inheritance rights.

International Surrogacy

It is not uncommon for individuals to seek surrogacy arrangements abroad. In the UK, regardless of what arrangements have been made abroad, the surrogate is still considered the legal mother, and a Parental Order will still need to be applied for.

International surrogacy is slightly more complex as it involves cross-border issues of family law, immigration and nationality. This does mean that there tends to be a heightened need for bespoke legal advice in this type of situation.

Other considerations

  • Everyone involved in the surrogacy should make sure that their wills are updated.
  • Everyone involved must also obtain insurance to fully protect the surrogate and the child during your journey.
  • Nationality and applications for British passports will have to be considered when engaging in international surrogacy. Again, this advice should be taken in the early stages.

Surrogacy arrangements can often work well, and the court process is usually straightforward. However, there sometimes can be complications, no matter how prepared you may be.

The current legal framework in the UK remains an altruistic model, reliant on trust on both sides. Although this may be daunting to hear, it is not unheard of for surrogates or intended parents to change their minds, leaving the child at the centre of a dispute. With us, you can be assured that our expertise will help navigate any complicated surrogacy journeys, and we will work tirelessly to ensure that the best outcome is achieved