There are two general models of surrogacy arrangement:
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 email@example.com, or contact 020 7631 4141 and ask to speak to our Forming Families team.
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:
Certain advertisements about surrogacy are also illegal, namely those indicating:
Surrogacy other than on a commercial basis (i.e. when no payment is made) is legal in the UK.
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.
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.
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.
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.
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 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.
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 firstname.lastname@example.org or contact 020 7631 4141 and ask to speak to our Forming Families team.