Fertility & Surrogacy

Is Surrogacy Legal in the United Kingdom

The Surrogacy Arrangements Act 1985 makes it a criminal offence, on a commercial basis 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, those indicating:

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

Surrogacy, other than on a commercial basis, 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. However, they can pay for expenses granted they a relevant and reasonable. Such payments can be scrutinised by the courts prior to the issuing of a formal order.

Due to strict limitations on commercial surrogacy, English law does not allow legal practitioners to draft surrogacy agreements.

Do I need a formal agreement in place?

A written document is not necessary. However, many involved in a surrogacy arrangement will find it comforting to have recorded of the agreement. There is no legal requirement to have a surrogacy agreement in England and Wales, but it is always advisable to do so.

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.

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

Who are the legal parents of the child?

At birth, the woman who carried the child is always the legal mother, even if there is no genetic relationship between them.

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

The intended 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 are genetically related to the child.

I am the biological parent. How do I get an 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 intended parents.
• The intended 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 intended parents.
• At least one of the intended parents must be domiciled in the UK (including the Channel Islands or the Isle of Man).
• The intended 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.

Once a Parental Order is made, the intended parents will become the child's legal parents and will acquire parental responsibility. A new birth certificate will then be issued for the child which will state who the new 'legal' parents are.

If the intended parent(s) cannot qualify for a parental order, the only other order that severs the legal relationship between the child and the surrogate (and her spouse) and re-assigns legal parenthood to the intended parent(s) is an adoption order.

If an adoption order is not possible, the court will look at other possible orders. There are several different options. These include:

• Wardship
• Special guardianship orders
• A child arrangements order
• Specific issue and prohibited steps orders

Why choose Westridge Legal?

Our team of family lawyers are aware of the sensitivity and complexity involved in surrogacy matters. We understand that every individual requires different care and are here to support you.

Our highly experienced lawyers will guide and support you every step of the way to ensure that the best outcome is achieved with minimal disruption to your life.

If you wish to speak about your options directly with our specialist staff, please contact us on 0121 724 0302 to book a consultation today.