Surrogacy introduces complex issues regarding the definition of parenthood, the criteria for assigning parental rights and duties, and the protection of the interests of the child yet to be born.

Current Legal Framework in the UK

In the UK, the woman who gives birth is the LEGAL mother, full stop. This is regardless of any genetic connection to the child or intention to raise the child. If the surrogate mother is married, her spouse is deemed the other legal parent. Intended parents must care for the newborn but are not recognised as legal parents until a parental order is issued. This order is essential for intended parents to make decisions about the child’s medical care and other important matters. If the surrogate is unmarried and the child is genetically related to one of the intended parents, that parent can be listed as the second legal parent.

Parental Orders and Judicial Constraints

A court application is required to reassign legal parenthood and parental responsibilities from the surrogate to the intended parents.

This application can proceed provided there is a genetic link between the child and at least one of the intended parents. The process ensures the surrogate’s consent was willingly given and considers the child's welfare as paramount.

Criteria for a parental order include:

the surrogate's consent post-birth;
application timing (between 6 weeks and 6 months after birth);
limited payments to the surrogate; and
the child’s residency with the intended parents in the UK.

Despite stringent conditions, courts sometimes grant orders even if not all conditions are fully met, prioritising the child’s welfare.

Without a parental order, intended parents may lack authority over significant decisions concerning the child. If a parental order is not viable, other legal measures like Child Arrangements Orders may be pursued, or adoption might be necessary if there is no genetic link to the child.

This overview highlights the careful considerations and legal steps involved in surrogacy to align with both ethical standards and the law's requirements.

To Profit or Not To Profit

Under current legislation, it is an offence for an intermediary to profit financially from facilitating or negotiating a surrogacy arrangement.

There are organisations in the UK that connect potential surrogates and intended parents, as well as offering practical, emotional, and legal support and advice (the main organisations are COTS, Surrogacy UK, Brilliant Beginnings, and My Surrogacy Journey). However, they must do this on a not-for-profit basis.

Non-profit surrogacy organisations are allowed to promote their services generally, but it is an offence to advertise either for a surrogate, or to be a surrogate. Otherwise, these organisations are not subject to regulation or oversight, and they differ in the models of support they offer.

Protecting Your Future

Surrogacy offers a unique path to parenthood, but it is essential to approach it with a full understanding of the legal landscape. By seeking professional legal advice, you can protect your rights, mitigate risks, and ensure the best possible outcome for all involved. Contact us today to schedule a consultation and learn how we can assist you on your surrogacy journey.

How Can we Help?

If you are considering surrogacy as a way to start your family, our specialist surrogacy lawyer, Etain Leung, can give you advice on what to expect and the legal process of obtaining a Court Order and other considerations such as drafting an agreement with your surrogate.

If you have already started the process and need advice with regard to obtaining a parental order or immigration considerations, Etain Leung can assist you with the application for Parental Order and provide guidance/assistance with regard other legal considerations.

Call us today on 020 4515 9444.