Surrogacy Law Services

Starting a family is a wonderful and inherently meaningful process. However, it can also be complicated and stressful process,  not least for parents considering surrogacy or fertility treatment.

Surrogacy is a growing and exciting option for many people creating their families. For many, having the opportunity to start or extend a family is perhaps the most important thing an individual can encounter in their lifetime.

It is crucial to get it right. If you are considering having a child through surrogacy, whether abroad or domestically, specialist legal advice is essential. The legal issues surrounding surrogacy are complicated and will require careful navigation to ensure a seamless process, from arranging the surrogacy to taking your new baby home.

An introduction to Surrogacy

There are two ways in which a child can be born through surrogacy.

Traditional surrogacy involves the insemination of a surrogate mother, using her own eggs.

Gestational surrogacy involves a surrogate carrying a child conceived using another individual’s eggs, whether that would be an egg donor or the intended mother.

Either arrangement is legal in English law. However, commercial surrogacy is not. This means that it is illegal to pay someone to be a surrogate for you. Equally, a surrogate cannot offer to carry a baby for commercial means. This is a criminal act and it is important to give careful thought to make sure that your surrogacy arrangement is not commercial in nature.

Legal Status of the Parents

Under English law, the surrogate will be the legal mother of the child at birth. The intended mother will have no status as a parent, regardless of biology.

If the surrogate is married or in a civil partnership and her husband or civil partner has consented to the surrogacy arrangement, her husband or civil partner will be the legal father or second legal parent at birth. Again, this will be the case regardless of biology.

The intended father will only be the legal father of the child if:

  • He is the biological father; and
  • The surrogate mother is single or their husband or partner did not consent.

Because of the law on the legal status of parents following a birth by surrogacy, an application to court for a parental order is necessary in order to ensure that the intended parents replace the surrogate (and her husband or civil partner) as the legal parents.

A surrogacy agreement between intended parents and a surrogate in relation to the legal parenthood of a child will not be enforceable and should not be treated as a replacement for a parental order.

Unfortunately, it is not currently possible for a single person to become a legal parent through surrogacy. This is something that has been criticised by many lawyers and is currently subject to review.

Only the legal parent(s) can be on the birth certificate. If the intended father is the biological father, he must attend the birth registration in person, along with the surrogate mother, in order to ensure that he is named on the birth certificate.

International Surrogacy

Many people go abroad in order to find a surrogate. If you are considering doing so, you should note that different countries deal with parenthood and surrogacy differently.

In order to prevent any complications in bringing your child home, to live with you as his or her legal parents, legal advice should always be sought in both countries.

For example, in some countries an order can be made to transfer legal parenthood before the birth of the child. Such orders will, however, not be recognised in England and Wales.

Indeed, in some countries, surrogacy is illegal and you should always comply with the law of the country in which the surrogacy is intended to take place.

In the case of international surrogacy, thorough preparation needs to be of utmost priority.

Parental Orders

A parental order is an order of the court which will transfer parenthood from the surrogate parent (and her husband/civil partner, where applicable) to the intended parents. It extinguishes all links between the child and the surrogate mother. It gives full parental status (and parental responsibility) to the intended parents.

A parental order is essential in all surrogacy cases. Once the order is made, a new birth certificate will be issued with details of the child’s new legal parents.

Unfortunately, single parents cannot apply for a parental order following a surrogacy arrangement.

In order to obtain a parental order, the following criteria need to be made out:

  • Both be over 18 and married, civil partners or in an enduring family relationship;
  • At least one must be a biological parent;
  • At least one must be domiciled in a part of the UK (including the Channel Islands or Isle of Man);
  • The conception must have been artificial;
  • The child’s home must be with the intended parents at the time of the application;
  • The surrogate mother, and her husband or civil partner where applicable, must consent to the making of the order. This cannot be done validly within 6 weeks of birth;
  • There must have been no payments made between the parties except for reasonable expenses. Determining what will be interpreted as a reasonable expense is dealt with on a case by case basis, but careful thought should be applied to this at all times.
  • The application must be made within six months of the child’s birth.

How we can help

Our team are specialists with vast experience in all areas of family law.

If you are a couple and you would like to explore surrogacy or assisted reproduction, we can advise you on the various options.

In particular, we can help with the following:

  • Legal advice for surrogacy planning;
  • Parental orders (or consideration of alternatives);
  • Surrogacy disputes;
  • Fertility law relating to alternative assisted reproduction methods.

Creating or extending a family is a time of great joy. Careful planning is essential, and this includes talking to a specialist family and fertility lawyer who can help you navigate the process.

For a consultation with a specialist surrogacy solicitor please email: james.maguire@family-law.co.uk or telephone:

Wilmslow    01625 544650

Knutsford   01565 648228

London       0207 9474219

 

 

 

 

 

 

CALL US FOR MORE ADVICE ON 01625 544 650