Surrogacy law

Whether you wish to be a surrogate, or plan to conceive a child using a surrogate, you should be aware of your legal rights and obligations. Surrogacy is strictly regulated and it’s important that everyone involved receives clear legal advice before agreeing to anything.

Caroline Andrews, Brentwood

Is surrogacy legal in the UK?

It is legal to have a child through a surrogate in England and Wales. However you cannot profit from advertising or arranging a surrogate.  You should not pay someone to be your surrogate, but you may be expected to cover reasonable expenses of the surrogate such as: treatment costs and any loss of earnings.

Who are the legal parents of a child born through a surrogate? 

When the child is born, under English and Welsh law the surrogate will automatically be the legal mother of the child. If the surrogate is married or in a civil partnership, then their partner will be the other parent of the child initially.

The intended parents will need to apply for a parental order within six months of the child being born, in order to become the legal parents of the child. Married or civil partnership couples are able to apply for a parental order. For single parents the law is a little more complex. 

It can take several months for a parental order to be granted and the intended parents must meet the various criteria which include:

  • Being biologically related to the child (and if a couple, a least one must be child’s biological parent)
  • Have the child living with you
  • Reside permanently in England or Wales 

When the parental order has been granted by the court, the child’s birth certificate will be re-issued with the intended parents recorded as the legal parents. 

What is a surrogacy agreement?

While surrogacy agreements are not legally enforceable in England and Wales, many intended parents do still choose to enter into a surrogacy agreement, because it sets out important and often sensitive information ahead of the birth of the child such as:

  • The time and place of conception i.e. using a fertility clinic or at home.
  • The expenses of the surrogate mother to be paid by the intended parents
  • When the baby will be handed over to the intended parents
  • If there will be any contact between the surrogate and the baby after the baby is handed over to the intended parents

Please be aware that if you choose to enter into a surrogacy agreement a solicitor will be unable to offer any advice, due to the Surrogacy Act 1985 which prohibits surrogacy being for commercial gain.

Surrogacy disputes

Often, intended parents considering surrogacy, worry about what will happen if the surrogate does not hand over the baby at birth. There are applications that can be made to the court by the surrogate or intended parents, through the Children Act and you should take specialist legal advice. At Tees, we have expertise in resolving complex surrogacy disputes. We can represent parties in court on these applications but we also offer mediation, if appropriate, where we will meet you to identify and discuss the issues and reach an agreed way forward together.  

Should I make a special will?

Just as when you become parents in any circumstance, it is important to update your will. You will need to consider any wishes concerning the child, add a guardianship clause, your wishes relating to your pension, plus temporary provisions whilst the parental order is ongoing. Our specialist wills solicitors can help with drafting your will.   

What are my employment rights as a surrogate or intended parent?

Surrogate mothers will have the right to 52 weeks maternity leave and have the option to return to their job after their maternity leave. Intended parents may have the right to adoption leave or parental leave, but only one parent will be able to take adoption leave. If there are two parents, then the other may be entitled to paternity leave.

What to do next

If you need legal advice about adoption, or a related issue, give call us. A dedicated family law solicitor will outline your options and tell you how we can help.

Come in and see us for a FREE 30 minute face-to-face consultation about your options. Alternatively, if you want us to take a closer look at your situation, for a fixed fee of £150 + VAT, we can talk with you for up to 90 minutes.

Call our Family and Divorce Law solicitors on 0800 013 1165

For a free initial chat, at no obligation, or fill out our enquiry form and a solicitor will get in touch.

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