Surrogacy is legal in the UK, but there are restrictions which determine who can become the parents of a baby born to a surrogate mother, and how they must go about it.
As the law currently stands, prospective parents over 18 who wish to have a baby via a surrogate must meet certain requirements. At least one of them must be a biological parent of the baby; at least one of them must be domiciled in the UK. Couples no longer need to be married, and the same rights extend to same-sex couples in civil partnerships.
It is illegal for parents to directly advertise for a surrogate, or for surrogates to advertise their services to hopeful parents. It is also usually illegal to be paid to carry a baby, although surrogates can receive “reasonable expenses”.
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Surrogates may change their mind at any time, leaving little recourse for disappointed parents; it is therefore essential that the parties enter into a surrogacy arrangement with their eyes wide open and are as transparent as possible. Surrogacy agreements are not binding in England and Wales, unlike some US states, but it is still important to have one in place so everyone knows where they stand and we can guide you through the reviewing process.
New parents should also be aware that in the eyes of the law, the starting point is always that the woman who actually gives birth to a baby is legally considered to be the child’s mother, regardless of whether the baby was conceived via an egg donor.
Parents should apply for a document, called a “parental order”, to get around this problem. This allows couples to be legally registered as a child’s parents, regardless of who physically gave birth to the baby. Once a parental order is in place, the surrogate will no longer be considered the child’s legal mother.
Restrictions still apply. A parental order will not be granted before a baby is born, or until six weeks after birth, so no-one can apply in advance to be named as a parent. However, the order must be registered within six months of a child’s birth – otherwise, the opportunity is lost forever, and the surrogate will remain registered as the baby’s mother.
Perhaps most importantly, the surrogate must also agree to come off the record as the child’s mother before a parental order can be made.
However, if a surrogate mother is married, or in a civil partnership, both she and her partner will be automatically registered as a child’s legal parents – regardless of whose eggs and sperm were used to conceive the baby – and they must both agree to relinquish their status as parents before any order will be granted. If a surrogate mother is single then either the biological father or a second parent can be named on the birth certificate.
Although the number of cases in which surrogates change their minds is statistically extremely low, there is nothing in the law to force a surrogate or her partner to agree to such an order. However, there are other options available to parents who find themselves in this situation.
It is vital for anyone considering surrogacy as an option to make sure everyone involved goes in with their eyes open and we are able to help you through this process.
Surrogacy offers many couples the chance of parenthood, but anyone considering starting a family this way should always make sure they have the best possible advice from a qualified specialist before embarking on their momentous journey.
If you have any questions about how this service works, or if you would like to book an appointment with one of our expert solicitors, please get in touch.