Surrogacy – hand over the baby

More and more people, whether they are in same sex relationships or have fertility issues are choosing to use surrogates to help them have their child.It is not just for celebrities like Kim Kardashian or Elton John; but a real option for many couples who otherwise may not be able to have biological children of their own. We live in a modern world and gone is the traditional stereotypical family of mum, dad and 2.4 children.
The law relating to surrogacy is complex and specialist advice is important. You should know your rights, options and responsibilities as well as what you need to do prior to instructing a surrogate.

Legal Parents

An important point is that the woman who gives birth to a child (the surrogate) will automatically be the legal mother and if she is married then her spouse will be recognised as the child’s second legal parent. This is the starting point and unfortunately means that the intended parents (who may even be the biological parents of the child) are not automatically recognised as their child’s legal parents from birth. This issue can be resolved by applying for and being granted a parental order by the court. Such an order will remove the status of the surrogate and her spouse if she has one as legal parents and reassign legal parenthood and parental responsibility to the intended parents. The child will be granted a new birth certificate to replace the old one.

You can apply for a parental order if one of the following applies:

• You are single, a couple (either married, in a civil partnership or living together in an ‘enduring family relationship’).
• One or both applicants must be domiciled* in the United Kingdom, Channel Islands, or the Isle of Man.
• Your surrogate must freely, and with a full understanding of what is involved, agree unconditionally to the making of the parental order.
• If your surrogate is married, her husband/wife will also need to consent. This is an absolute requirement. If your surrogate and her spouse do not consent, then the court will not be able to make a parental order.

Obtaining consent

Obtaining a spouse’s consent can sometimes be quite simple but sometimes this can be a real issue particularly where the surrogacy arrangements are taking place abroad and there may be a language barrier.

The Court will also consider a number of other criteria including particular timescales, biological requirements and financial payments made to your surrogate. Parents and surrogates cannot enter into commercial arrangements in the UK.

The court must be satisfied that (unless authorised by the court) no money or other benefit (other than for expenses reasonably incurred) has been given or received by either parent(s) or surrogate for any of the following:

• The making of the parental order.
• Any agreement required from the surrogate mother or any person who is a parent of the child but is not one of the applicants.
• The handing over of the child to the intended parents.
• The making of arrangements with a view to the making of the order.

Apply for parental orders

​One of the main difficulties often experienced by those applying for parental orders is that the very nature of the arrangements required can entail some infringement of the law. This difficulty is most frequently encountered in relation to payments made to the surrogate. There can also be complex queries surrounding immigration and jurisdictional issues if arrangements are taking place abroad.

Surrogacy is an area of law which is ever changing and adapting. Currently he law has some flaws and is being reviewed so that it better supports intended families and surrogates. The Law Commission prepared a report on reform of surrogacy law so watch this space.

If surrogacy isn’t for you there are other options to obtain parental responsibility for children or to have children, such as Adoption. 

More information

For more detailed and specific advice on surrogacy arrangements please contact our Family Law Team who will be happy to assist.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.