Domestic and international surrogacy lawyers

Surrogacy is where a woman (‘the surrogate’) agrees to carry a child with the intention of the child being raised by someone else (the intended parent(s)).

This is different from adoption because the arrangement will be in place prior to conception and will always have been the intended outcome.

There are two types of surrogacy: gestational and traditional.

Gestational surrogacy is when the baby is not biologically linked to the surrogate. In this type of surrogacy, an embryo is created using the egg of the intended mother or egg donor and the sperm from the father or sperm donor.

Traditional surrogacy is when the sperm of the father is used to fertilise the surrogate’s egg. With traditional surrogacy, the baby is therefore biologically linked to the surrogate mother.

The law in the UK currently requires at least one of the intended parents to be genetically connected to the child.

Surrogacy is legal in the UK, although surrogacy agreements/arrangements are not enforceable in law. This is set out in The Surrogacy Arrangements Act 1985, which regulates what can and what cannot be done.

For example, under the Act, it is an offence to advertise that you are seeking a surrogate or that you are a potential surrogate.

It is also an offence for anyone to match intended parents and potential surrogates, or to broker/advise on a surrogacy agreement, for commercial gain. This applies to solicitors. There is an exemption for a number of non-profit organisations, who can assist intended parents and surrogates in their surrogacy journey.

A surrogacy agreement is the agreement drawn up between the intended parents and surrogate, which sets out how the arrangement will work and confirms each party’s commitment to the others in advance of the surrogacy getting underway.

These agreements are not enforceable in the UK, but it is accepted by all non-profit surrogacy organisation that it is still helpful for both surrogates and intended parents to have something in writing which confirms the details of their arrangement.

The Surrogacy Arrangements Act 1985 prohibits any third party from profiting from preparing, negotiating, or advising on these agreements and as solicitors, we are not therefore able to advise on these agreements. The non-profit surrogacy organisations are exempt from this and are able to support and advise both intended parents and surrogates through this stage of the surrogacy process.

In order for intended parents to be recognised as the legal parents of the child in the UK, they must obtain a Parental Order. Without this, the surrogate, and their spouse/civil partner (if applicable) will remain the legal parents of the child, even if the surrogate is not the biological mother. This is the case regardless of whether the surrogacy took place in the UK or abroad, or if the intended parents have been named on the birth certificate.

A Parental Order is an order made by the court in England and Wales, which transfers legal parentage of a child from the surrogate (and her spouse/civil partner) to the intended parents. A Parental Order usually takes around 6 months to be granted.

In order to obtain a Parental Order, an application must be made to the Family Court. This should be done using Form C51. The application cannot be made until after the child is born.

The intended parents will be directed to prepare a detailed statement setting out how they comply with the legal requirements, and a Parental Order Reporter will be appointed to prepare a report for the court with their recommendations as to whether the Parental Order should be made.

Unfortunately, it is possible for the surrogate to change their mind. One of the legal requirements for a Parental Order is that the surrogate must consent. Their written consent must be obtained not earlier than 6 weeks after the birth of the baby. If the surrogate withdraws consent, the Parental Order cannot be made.

However, in practice this is very rare.

Even where a Parental Order cannot be made, it is still possible for the intended parents to be the ones to raise the child, the court may simply have to get creative in terms of the orders it makes.

Whilst it is not legal to ‘buy a baby’, it is legal (and indeed, normal) for the surrogate to receive some payment in relation to her reasonable expenses. Unlike, for example, egg donation, where there is a fixed amount a person can receive for their eggs, there is no prescribed amount that can be paid and what is reasonable will be considered on the facts of the case.

It is important for the intended parents to keep excellent records of all payments made and the purpose of these, so that these can be clearly set out in their statement to the court.

The directions hearing is typically a very short hearing, where the court consider what evidence is necessary and makes the required directions. This will typically be for the intended parents to prepare and file a statement and evidence in support of their application, and for a Parental Order Reporter to prepare a report for the court.

In some cases, the court will make the directions on paper, without the need for the parties to attend a hearing.

If there are any complications, it may be necessary for there to be a further directions hearing.

At the final hearing, the court will make a decision as to whether the Parental Order should be made. If there are complications, the court may wish to hear from the parties’ advocate in more detail or even the parties directly, but in most cases, the decision will be made on the basis of the intended parents’ statement and the recommendation of the Parental Order Reporter.

It is not unusual for the child to be brought along to the final hearing, as this is often a day of celebration.