Bishop & Sewell

The Department of Health and Social Care recently published guidance for surrogates and intended parents, which sets out how to start a family through a surrogacy arrangement in England and Wales.

The guidance offers a helpful “how to” guide for anyone entering into a surrogacy agreement. There are many practical and legal factors which surrogates or intended parents need to consider before they decide to use an assisted conception option.

We summarise below some key points from the government guidance for couples who might be considering embarking on the surrogacy journey:

Is it legal?

There appears to be a lot of confusion from many prospective clients we speak to as to whether surrogacy is in fact legal in the UK. Although such arrangements are not in fact enforceable in law, surrogacy is in fact legal in the UK. Under the Surrogacy Arrangements Act 1985 it is an offence to advertise that you are seeking a surrogate or that you are a potential surrogate looking for intended parents. It is also an offence for third parties to arrange or negotiate a surrogacy arrangement as a commercial enterprise, although there are some exemptions for non-profit organisations.


The Legal Considerations

The surrogate (and if she is married or in a civil partnership, her consenting spouse or civil partner) will be the legal parent(s) of the child at birth. Therefore following the birth the intended parents need to go through the legal process of obtaining a Parental Order to transfer the legal parenthood from the surrogate to the intended parents.

Certain criteria need to be met for a Parental Order to be granted, therefore, the Government guidance, UK regulator (the Human Fertilisation & Embryology Authority) and the family court all recommend that anyone embarking on a surrogacy arrangement seeks legal advice in advance. Some UK clinics require that legal advice is sought at the outset to ensure that there is an understanding about the Parental Order application and the clinic may ask for a letter to confirm this advice has been sought.

In order to apply for a Parental Order and transfer legal parenthood at least one of the intended parents must be genetically related to the baby. Single parents cannot currently apply for Parental Orders in surrogacy cases, however, the government intends to introduce legislation to change this.

Why Intended Parents need a Parental Order

Parental Orders transfer the legal parenthood for children born through surrogacy from the surrogate to the Intended Parents. The guidance describes legal orders as “the optimum legal psychological solution for a child born through surrogacy.”

Without a Parental Order the Intended Parents may:

  • not have the authority to make decisions about their child’s education and medical care;
  • not be able to travel abroad with the child;
  • face legal complications should they separate or divorce;
  • face difficulties with issues of inheritance and pensions; and
  • need to find and involve the surrogate in future decisions involving their child.

The full guidance can be found HERE

If you are thinking of entering into a surrogacy arrangement and require advice about the process or need to obtain a Parental Order please contact Louise or Victoria from our expert Family & Divorce team who will be able to assist you. Alternatively, please email or call 020 7631 4141.

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