Surrogacy & English law at a glance

It is a common myth that surrogacy is illegal in English law; hundreds of families each year form families through surrogacy and experience the joy of parenthood.

Every new parent will also benefit from the English court’s powers to make a Parental Order as a result of surrogacy arrangements, wherever they go in the world for their journey.  These are a unique power to the Family Courts and are transformative in effect for a family to recognise the legal parents of the child.   The English law on surrogacy is governed principally by two statutes: the Surrogacy Arrangements Act 1985 (“SAA 1985”) and the Human Fertilisation and Embryology Act 2008 (“HFEA 2008”), albeit the principle sections relating to surrogacy were brought forward from the much earlier Human Fertilisation and Embryology Act 1990.

Under the current law, the surrogate will always be the child’s legal mother at the time of birth (s.33, HFEA 2008) and if married or civil partnered then the surrogate’s husband, wife or civil partner to be the second parent/father (ss.35 & 42 HFEA 2008).   The English courts have repeatedly made it clear that the HFEA 2008 applies to every person in England & Wales, wherever they go for their surrogacy journey.  Therefore even if the Intended Parent(s) travel abroad, English law will not recognise a foreign birth certificate for the purposes of transferring legal parenthood, as this contradicts s. 33(1) HFEA 2008.

Each surrogacy journey, whether international or domestic, must therefore result in the Intended Parent(s) applying to the Family Court for a Parental Order either under s.54 (couples) or s.54A (single persons) of the HFEA 2008.  They must satisfy the court:

It is also important to note that the of the surrogate is married, her spouse or civil partner will also be the legal parent.  While the Intended Mother will never have the parental responsibility as they are not the child’s mother in English law (Children Act 1989, s.2), now the Intended Father will also not have parental responsibility.  On a day-to-day basis, this lacuna in the law does not cause many couples difficulty, but any serious health issues or travel matters will require the consent of someone with legal authority.

Surrogacy is a well-trodden path to family formation and both couples and single parents can achieve this within the UK or by travelling abroad.  The High Court deals with all international surrogacy matters to ensure consistency, but there are a myriad of statutes and protections for families looking at surrogacy, including specific laws for employment leave and rules for immigration purposes.  There are common problems and hurdles, but most can be avoided entirely by good preparation and good planning.  Forewarned is forearmed.

Our Modern Families team have leading experts, best known for their work in legal parenthood and surrogacy.  Lead by Andrew Spearman, a specialist senior practitioner in surrogacy law, the team advise on complex surrogacy matters and complex cross-border family planning.

You can arrange a consultation with them and explore these issues and ensure full understanding of the law as you look to build a family, whether in the UK or abroad.

Get in touch with our Modern Families team on 020 7228 0017 to arrange your consultation now.