Surrogacy is an option that may be considered by couples who cannot conceive naturally. Data acquired by Brilliant Beginnings shows significant growth in surrogacy in both the UK and abroad, with the number of court applications for Parental Orders in England and Wales increasing from 87 in 2008 to 280 in 2018.

If you are planning to extend your family by surrogacy, our family law specialists at Birkett Long will be able to help. We understand it can be an exciting but challenging time for families and we aim to help make the process as smooth and straightforward as possible.

Planning for surrogacy in England and Wales 

Planning for surrogacy can be daunting, not least because of the legal issues it can create and the paperwork involved. At Birkett Long our family law solicitors help intended parents navigate the law around surrogacy. We can advise you about the different types, help you plan for surrogacy and assist with any disputes between surrogates.

There are two different types of surrogacy:

1. Straight or traditional surrogacy: this uses the surrogate’s own eggs and therefore creates a biological connection between the surrogate and the child; and
2. Host of gestational surrogacy: this is where the surrogate is not biologically related to the child and the eggs are either from the intended mother or from a donor.

We strongly advise you to enter into a surrogacy agreement (sometimes referred to as a pre-birth contract) that will set out how the arrangement is going to work. These agreements are not legally binding but they are the best form of protection currently available to all parties entering into a surrogacy arrangement and can, in the event of disputes between surrogates, help a court to resolve those disputes.

Commercial surrogacy

It is illegal to pay a surrogate in the UK apart from their reasonable expenses. Commercial surrogacy is not permitted in the UK.

Who is the legal parent?

When the child is born the surrogate automatically becomes the child’s legal parent. To change this it will be necessary to obtain a Parental Order from the court. Without this (or an Adoption Order) the surrogate remains the child’s legal parent and you may not have the authority to make immediate or future decisions on behalf of your child, for example, decisions about what medical treatment your child may need or what school they should attend.

To obtain a Parental Order the surrogate and their spouse/civil partner (who will also be the child’s legal parent) must provide their consent. This can only be given once the child is at least six weeks old. A Parental Order can be obtained by applying to the court who will then appoint a Parental Order Reporter. It is the Reporter’s role to help the court determine whether a Parental Order will be in the best interests of the child.

Sometimes, married couples and civil partners enter into international surrogacy arrangements. This means a couple may ask someone from a different country to carry their child. English law can still apply to these arrangements but it is recommended couples obtain independent legal advice before proceeding.

For help with surrogacy law and/or obtaining a Parental Order please contact one of our specialist family lawyers who will be happy to guide you through the process and help you to avoid some of the pitfalls and subsequent heartache that can occur.

We can also provide advice and guidance around the legal aspects of certain fertility treatments and birth registration after surrogacy.