The path to parenthood differs for everyone. For some the most appropriate option is to use a surrogate. Surrogacy is a topic which hits headlines and sparks conversations. The legal position regarding surrogacy is complex and may differ between jurisdictions.
What is surrogacy?
Surrogacy is where a person becomes pregnant with a child and gives birth to the child with the intention that someone else will be the legal parents of that child.
There are two types of surrogacy: traditional or gestational. Traditional surrogacy uses the surrogate's egg and the intended father's sperm. Gestational surrogacy uses the intended parent's egg (or that of another donor who is not the surrogate) and the intended father's sperm (or that of another donor).
What is an intended parent?
The intended parent or parents are the individual or couple who wish to have a child via surrogate. If the intended parents are a couple, then they must be married, civil partners or in an 'enduring family relationship'.
What are the differences between a biological parent v legal parent in surrogacy?
When a child is born via surrogate, the intended parents are not the legal parents, regardless of whether or not they have a genetic link to the child. When the child is born, the surrogate is the legal mother of the child. If the surrogate was married or in a civil partnership at the time of the surrogacy, then their spouse or civil partner is the child's other legal parent. If the surrogate was not married or in a civil partnership the other legal parent can be the intended father (if their sperm was used) or the surrogate's partner (if they are not the sperm donor but consented to be the other legal parent). In some cases, only the surrogate will be the legal parent. In the UK, in order to become the child's legal parent, the intended parent or parents require(s) to apply to the courts for a 'parental order'.
The Human Fertilisation and Embryology Act 2008 governs the process which must be followed when applying for a parental order. The order must be applied for after the child is 6 weeks old, but prior to the child turning 6 months old. If there are circumstances preventing an application to the court being made in this time, the court does have discretion to consider a 'late' application. The legal parents require to consent to a parental order being granted and the child must be living with the intended parents at the time of the application being made.
As the legal parents differ from the intended parents, the legal procedure involved in surrogacy cases enables the intended parents to become the child's legal parents and to obtain parental rights and responsibilities which entitle them to make decisions on important matters affecting the child, such as the health, education, and general welfare. The granting of a parental order in favour of the intended parents removes all parental rights and responsibilities from the surrogate and other legal parent (if there is one).
Understanding surrogacy agreements
The parties involved in a surrogacy arrangement may wish for details to be documented in a formal agreement. Although surrogacy agreements are not enforceable in the UK, it can be useful for the intentions and expectations of all parties to the surrogacy arrangement to be clearly recorded. The agreement could also cover details such as expenses. It is illegal to enter into a commercial surrogacy arrangement in the UK, so any expenses in a surrogacy arrangement must be restricted to only those that are 'reasonable'.
Reform in surrogacy law
The Scottish Law Commission and the Law Commission of England & Wales have published a joint report, "Building Families Through Surrogacy: A New Law" which recommends reform in surrogacy law.
Given the complexities surrounding surrogacy law, it is important that the intended parent(s) and the surrogate seek independent legal advice at an early stage prior to entering into a surrogacy arrangement either in the UK or abroad. If you would like to speak to a member of our family law team, please get in touch.
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Solicitor
