Bishop & Sewell

What is surrogacy?

Surrogacy is an arrangement in which a woman carries and delivers a child for another person or couple. The woman birthing the child is called the ‘surrogate mother’. The parent or parents for whom the child is intended are called the commissioning, intended or social parents.

How does it work?

There are two general models of surrogacy arrangement:

  • Using the egg of the surrogate mother and the sperm of the commissioning father – sometimes called traditional, partial or straight surrogacy, and
  • Using the egg of the commissioning mother (or else of a donor) combined with the sperm of the commissioning father (or donor sperm) – sometimes called gestational, full or host surrogacy.

Traditional surrogacy may be carried out at an IVF clinic, or by artificial insemination at home. A child born through traditional surrogacy will be biologically related to the commissioning father.

An IVF clinic is always required for host surrogacy. A child born through host surrogacy will not be biologically related to the surrogate mother.

For initial legal advice on your surrogacy arrangement, or if you’d like to set up a virtual meeting / call with one of our team, you can use the form on this page or email, or contact 020 7631 4141 and ask to speak to our Forming Families team.

Some more FAQs

Is surrogacy legal?

Commercial surrogacy is illegal in the UK, under the Surrogacy Arrangements Act 1985. The Act makes it a criminal offence, on a commercial basis (i.e. when payment is made), to:

  • Initiate a surrogacy arrangement;
  • Offer or agree to negotiate a surrogacy arrangement, or
  • Compile information to use in making or negotiating surrogacy arrangements.

Certain advertisements about surrogacy are also illegal, namely those indicating:

  • a person is willing to enter into a surrogacy arrangement, and
  • a person is looking for a woman willing to become a surrogate mother.

Surrogacy other than on a commercial basis (i.e. when no payment is made) is legal in the UK.

Are payments for surrogacy legal?

Payments made to, or for the benefit of, the surrogate mother are not illegal under the Surrogacy Arrangements Act 1985. But intended parents cannot pay a woman to carry a child for them, though paying reasonable expenses is permitted.

However, at a later stage in a surrogacy arrangement, any payments made to a surrogate will be looked at carefully, to determine whether they are reasonable and they must be authorised by a court before a Parental Order can be made.

Do we need a formal surrogacy agreement?

A written document is not necessary. However, many involved in a surrogacy arrangement will find it comforting to have recorded in writing their respective expectations.

A surrogacy agreement, if prepared, can be as general or as detailed as the commissioning parents and the surrogate wish. It should record the amount and purpose of any payment made to the surrogate.

Many surrogacy arrangements proceed on the basis that the surrogate will have no involvement in the child’s life, once born. If that is agreed, it should be recorded in writing. If it is intended the surrogate will have some relationship with the child (which might range from being sent pictures and updates once a year, to regular time together) that should be spelled out.

Are surrogacy agreements enforceable? 

In the UK, a surrogacy agreement is not enforceable. A surrogate may decide to keep the child she is carrying. She has the right to do so, even if the child is not genetically related to her (as in host surrogacy).

Any agreement with commissioning parents cannot be enforced as if it were a contract. There is also no right to reclaim any money paid by the commissioning parents to the surrogate for expenses.

If a surrogate does change her mind, a Family Court Judge can be asked to resolve the dispute. He or she will do so by deciding the outcome that is in the best interests of the child.

The reverse is also true: commissioning parents may change their mind, in which case, the child would remain with the surrogate. From a legal point of view, surrogacy agreements are treated in the same way as pre-conception agreements.

Statistically, changes of heart by the surrogate or commissioning parents are rare. Surrogacy UK estimates that only about 2% of surrogacy arrangements break down.

Who are the legal parents of a surrogate child?

At birth, the woman who carried the child is always the legal mother, even if there is no genetic relationship (as in host surrogacy).

The child’s legal father or second parent will usually be the surrogate’s husband, wife, civil partner or cohabitant. If treatment was undertaken in a licensed clinic, and the surrogate has no partner, the child will have no legal father or second parent.

The commissioning parents may become the child’s legal parents by applying to the court for a Parental Order. Unless they do, they will not be the child’s legal parents, even if either or both of them are genetically related to the child.

How do Commissioning Parents get a Parental Order?

The Human Fertilisation and Embryology Act 2008 allows the court to make a Parental Order in relation to a child born through surrogacy. The following conditions must be met:

  • The child must be genetically related to one of the commissioning parents;
  • The commissioning parents must be married, civil partners or cohabitants in a committed relationship;
  • The application must be made within six months of the child’s birth;
  • The child’s home must be with the commissioning parents;
  • At least one of the commissioning parents must be domiciled in the UK (including the Channel Islands or the Isle of Man);
  • The commissioning parents must both be over eighteen;
  • The surrogate (and any other legal parent) must agree to the Parental Order; and
  • No money or benefit (other than for reasonable expenses) may have been paid in relation to the surrogacy.

The court can still make a Parental Order even if payments have been made beyond those described in the last condition. Whether it will do so depends on (among other considerations) the sums involved and the surrogate’s financial circumstances. The court will look very carefully indeed at an arrangement that amounts to the commercial ‘purchase’ of a child via surrogacy.

Once a Parental Order is made, the commissioning parents will become the child’s legal parents and will acquire parental responsibility. The surrogate (and any legal father or second parent) will cease being the child’s legal parents. A new birth certificate will be issued for the child naming the commissioning parents.

The law currently does not allow a single commissioning parent to apply for a Parental Order although this is expected to change in 2018, with a proposed change in the law.

If commissioning parents cannot apply for a Parental Order (for example, if neither is related to the child genetically, if the surrogate has withdrawn her consent, or if there is only one commissioning parent), an application for an adoption order is an alternative option.

Next steps

For initial legal advice on your surrogacy arrangement or to set up a meeting with one of our team, please fill in the form on the right, email or contact 020 7631 4141 and ask to speak to our Forming Families team.

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