Surrogacy law in the UK

Surrogacy is not illegal in the UK but it is restricted by various legal rules.  For example, it is a criminal offence to advertise that you are looking for a surrogate or are willing to act as a surrogate.  It is also an offence to broker a surrogacy arrangement on a commercial basis.  SUK does not fall foul of these laws because it operates on a not-for-profit basis. 

Surrogacy agreements are also unenforceable in UK courts, which means that it is not possible to enter into a legally-binding surrogacy agreement in the UK.  The family courts have in practice proved sympathetic to intended parents applying to enforce a surrogacy arrangement, but they have a wide discretion to act in the best interests of the child which means there are no guarantees.

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

Under English law, the legal mother of a child born through surrogacy is always, at birth, the surrogate mother.  This is because the law says that the woman who carries a child is the legal mother.  Although this law was primarily intended to benefit mothers conceiving with donor eggs, in surrogacy cases it means that the intended mother has no recognition as a parent, even if she is her child’s biological mother.

If the surrogate is married, the legal father, at birth, is usually the surrogate’s husband (irrespective of the biological relationships).  This means that the intended father has no automatic claim to legal parenthood, even if he is the biological father.  This applies if the surrogate is married, conceives artificially (through IVF or artificial insemination at home) and unless it can be shown that her husband did not consent to the arrangement.   Although it is tempting for the surrogate’s husband to say that he does not consent in order to release his status as a legal parent, various cases have established that this is not sufficient.  The husband cannot simply say that he did not consent if he did as a question of fact he has gone along with the arrangement.  Doing this is likely to complicate your situation and your court application rather than to make things easier.

For surrogacy conceptions that take place after 6 April 2009, similar rules apply to confer parenthood on the same sex civil partner of a surrogate mother.  If a surrogate mother is in a civil partnership with another woman at the time she conceives, her same sex partner will be the child’s second parent, again excluding the status of the intended father.

The intended father will only be treated as the legal father at birth if the surrogate mother is not married or in a civil partnership at the time she conceives, and if he is the biological father (i.e. the surrogate is not conceiving with donor sperm).  If the intended parents are a gay couple, fatherhood will go to the partner who is the biological father. 

Who goes on the birth certificate?

Only those who qualify as legal parents can be named on the birth certificate where the birth is registered in the UK. 

The surrogate mother is responsible for registering the birth, and she is recorded as the child’s mother.  If she is married, her husband is recorded on the birth certificate as the father.  If the surrogate mother is in a civil partnership, her same sex partner is recorded as the second ‘parent’ (where the conception took place after 6 April 2009). 

If the surrogate mother is single, the intended father can usually be named on the birth certificate, although he must attend the birth registration in person together with the surrogate mother.  In such cases, it is also possible to give the intended mother a limited form of legal recognition as a step-parent (known as parental responsibility) by signing a court form after the birth is registered.

Parental orders and other options

Parental orders are designed to remedy parenthood issues following surrogacy.  Like an adoption order, a parental order reassigns parenthood, extinguishing the parental status of the surrogate parents, and conferring full parental status and parental responsibility on both intended parents. 

Intended parents should apply for a parental order in all surrogacy cases, regardless of whether the surrogate is married or unmarried.  Once a parental order is made, a new birth certificate is issued naming the intended parents and replacing the child’s original birth certificate, and securing the position of both intended mother and father (or both fathers where the intended parents are a gay couple).  Even where the intended father is treated as the legal father at birth (i.e. where the surrogate is unmarried), the intended mother (or non-biological father) will not have full recognition as a parent unless you obtain a parental order.

To obtain a parental order, all the following conditions must be met:

The intended parents:

• Must both be over 18.

• One or both must be a biological parent of the child.

• One or both must be domiciled in a part of the UK, Channel Islands or Isle of Man. 

• Must be married to each other at the time of the application.  From 6 April 2010, unmarried and same sex couples will also be able to apply.

The arrangement:

• The conception must have taken place artificially (which can include home insemination).

• The child must have his/her home with the intended parents at the time of the application. 

• The surrogate mother and her husband must fully and freely consent to making the order.  The surrogate mother cannot validly give her consent until the child is 6 weeks old. 

• No more than reasonable expenses must have been paid, unless authorised by the court.  What constitutes reasonable expenses depends on the facts of each particular case and although in practice the courts have shown a reasonably broad-brush approach, great care needs to be taken. 

The application:

• The intended parents must submit their application within six months of the child’s birth (or, for unmarried and same sex couples who cannot apply until 2010, within six months of 6 April 2010 if this is later). 

To apply for a parental order, the intended parents must complete Form C51 and submit it to a Family Proceedings Court (magistrates’ court) of their choice. 

On receipt of the form, the court will issue an acknowledgement form Form C52 and send it to the intended parents, who must send this to the surrogate mother and her husband.  The surrogate parents must sign and return the forms to the court within 14 days.

If the case is straightforward, it will be dealt with in the Family Proceedings Court.  There will normally be two hearings:  at the first, the court will appoint a parental order reporter (whose role is to interview the intended and surrogate parents and to prepare a report for the court) and set the timetable for the rest of the case; at the final hearing the parental order should be granted, assuming that there are no complications. 

If there are any complications, the case may be referred up to the Principal Registry of the Family Division (which is equivalent to county court level) or to the High Court (Family Division).  More involved procedure then applies, including the need to prepare statements and case documents.

Do I need a solicitor?

In straightforward cases, many intended parents deal with the legal process themselves, although it can be helpful and reassuring to seek some guidance about what exactly you need to do and what to expect.  In more complex cases (for example where one or more of the parental order conditions may not be satisfied, or where there is an international element), it is important to be legally represented since the law is immensely complex and the stakes are high. 

What if a parental order is not available?

If any of the conditions cannot be satisfied, it may not be possible to obtain a parental order.  This might apply, for example, if the six month application deadline is missed, or if the intended parent is single (or widowed), or if the surrogate parents do not consent.  Securing the position of the intended parents may then be difficult, and will involve an application to the court for adoption, special guardianship or a residence order.

Do we need a parental order?

Many intended parents ask whether they really need a parental order, and what the position would be if they took no legal steps to regularise the situation.  The legal implications of taking no action depend on the status of the intended parents.

If the intended father is the legal father (typically where the surrogate was unmarried at the time of conception), he will be legally permitted to care for his child.  However, the status of his partner (either the intended mother or the non-biological father) will be left unsecured.  This could have a number of serious implications, including vulnerability if the intended father dies or the intended parents separate, and a lack of inheritance rights for your child.

If neither intended parent is a legal parent (typically where the surrogate mother is married at the time of conception), the situation is even more serious.  Neither intended parent will have any legal authority to care for your child, or to make decisions about your child’s welfare.  This can cause difficulties in practice (for example over consent to immunisations and medical treatment), particularly where it is not practical to secure the surrogate’s involvement in day-to-day decisions.  You are also likely to be committing a criminal offence in caring for a child you have no legal connection with if you do not involve social services to oversee the situation.

Although in practice, the problems associated with leaving the legalities unregularised may not cause problems for you immediately, in the long term there are many possible opportunities for the underlying legal issues coming to light, and opening a can of worms which is then very difficult for you to sort out.  Remember that a parental order must be applied for within six months of the child’s birth, or the opportunity is lost forever.  

Things to do before your child is born

As well as making sure you understand your legal position and are prepared for the legal process you will need to go through, it is important for all those involved in a surrogacy arrangement to make or update their wills, in case someone dies unexpectedly during the pregnancy or before a parental order has been obtained.  This ensures that the surrogate and her family are protected, and that the intended parents achieve some recognition as parents if the surrogate dies.

It is also usual for the intended parents to take out life insurance to protect their surrogate mother’s family in the event that she dies as a result of the pregnancy.

International surrogacy

International surrogacy can seem an attractive option, but it is important to beware of the legal pitfalls.

If you are a non-UK couple considering conceiving with a UK surrogate, you need to take care over the requirement that at least one of you is domiciled in a part of the UK.  Domicile is an often misunderstood legal concept which relates not to where you are living or your citizenship status, but to where your permanent roots are.  If neither intended parent is domiciled in a part of the UK, the court will not have the power to grant a parental order.  This means that it will be difficult for you to secure your status as your child’s parents and to take your child out of the UK.

If you are a UK couple considering conceiving with a foreign surrogate, you need to take care over conflicts of law on parenthood, and the rule against paying more than reasonable expenses.  Some foreign systems of law allow the intended parents to acquire parenthood status automatically, either through a foreign court process (such as a Californian pre-birth order) or simply by allowing them to be named on the birth certificate (as in India).  However, if you are domiciled here, English law will apply to you which means that you may not be regarded as your child’s legal parents (including for the purposes of entry clearance and citizenship, which can prevent you bringing your child home). 

The solution is for you to apply for a parental order, but if you have paid for a commercial surrogate, this may be difficult.  Most foreign surrogacy arrangements involve a commercial element, but under UK law this will mean that you will have to ask the court to authorise your payments before a parental order will be granted.  This is likely to involve an application to the High Court, and the court will weigh up very carefully the particular circumstances of your case in order to decide whether it should make an exception to the UK’s public policy against commercial surrogacy.

It is wise to seek legal advice before embarking on any international surrogacy arrangement. More information can be found via this Goverment UK Border Agency leaflet <<LINK>>

This guide to UK surrogacy law was written for Surrogacy UK by leading fertility lawyer Natalie Gamble, of Gamble and Ghevaert LLP.  More detailed information is available on the Gamble and Ghevaert website at www.gambleandghevaert.com, together with information about the firm’s campaign to get surrogacy law reviewed.