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 - get legal advice before you agree to anything.
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.
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. We also offer mediation, if appropriate, where we will meet you to identify and discuss the issues and reach an agreed way forward together.
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:
You may find our page on fertility law useful also.
To be recognised legally as the parents of the child, the intended parents must apply for a parental order. This must be done within six months of the child being born. You can apply for a parental order if you are married or are a civil partnership couple. For single parents the law is a little more complex.
Just as when you become parents in any circumstance, it’s important to update your will. You will need to consider:
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, legal costs and any loss of earnings.
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.
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:
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.