Surrogacy occurs where a woman carries and gives birth to a baby for another person or couple. It is legal to be part of a surrogacy arrangement in the UK, however, any surrogacy agreement that is entered into between the relevant parties is not enforceable if the parties do not agree to voluntarily proceed with the arrangement at any point.
The woman that carries the baby is known as the surrogate. The parent(s) that are wanting to have the baby are known as either the intended or commissioning parents(s).
Surrogacy can be used by a couple who are having difficulty in conceiving a baby or where the woman is finding it difficult to carry a baby to term. Those that have had repeated in vitro fertilisations (IVF) that have not been successful may also consider surrogacy. It is also often used in situations where it would be a risk to the health of the woman to become pregnancy.
Another reason why surrogacy may be considered is for single people who would like to start a family but do not have a partner or same sex couples.
There are different possible arrangements for surrogacy, depending on whether the egg and sperm are going to be used from the couple wanting to have the baby.
Partial surrogacy is where the surrogate’s egg is used and this is then fertilised by the sperm of (usually) the intended father. In this case the surrogate is the genetic mother. The Human Fertilisation and Embryology Authority recommends in this situation that treatment is performed at a licensed UK fertility clinic. This type of surrogacy is also known as gestational or host surrogacy.
Total surrogacy is where the egg that is to be fertilised is from either the intended mother or a donor. The egg is then fertilised, commonly by the intended father’s sperm. There is no genetic link with the surrogate mother in this case. This type of surrogacy is also known as traditional or straight.
In the UK, commercial surrogacy arrangements are illegal, however, the surrogate mother does need to be reimbursed for any expenses associated with the pregnancy, such as maternity clothes, travel expenses to appointments and also any loss of earnings. Therefore, in addition to the costs of the actual IVF treatment, the intended parents will usually have to spend at least £10,000-£15,000 in expenses for the surrogate.
This is not strictly necessary though it can help to have everyone agree their expectations in a written record. Whether or not the surrogate will be involved in the baby’s life after birth is something that can be considered and documented in this agreement.
However, such an agreement is not enforceable and the surrogate can change her mind and keep the baby, even if the baby is not genetically hers. Any money paid in expenses does not have to be repaid. The Family Courts can become involved to decide what is in the best interests of the child. It is also possible for the intended parents to change their mind. Both these cases are generally rare.
Those with parental responsibility for a child are able to make decisions about the child’s education, medical care, religion and lifestyle, as well as travel internationally. The surrogate mother, irrespective of whether she is genetically related to the child, is treated as the child’s legal mother with parental responsibility.
If she has a spouse or civil partner, they will also have parental responsibility for the child and treated as their parent in the eyes of the law. The exception here is where it can be proved that the surrogate’s husband did not consent to the insemination.
The intended father that is the donor of the semen is the same as the position of a known artificial insemination donor. He is the genetic father of the child, but does not have parental responsibility if the surrogate has a partner. The intended (and possibly donating mother) does not have parental responsibility for the child.
If the surrogate is single, then the donor father becomes the second parent automatically at birth. However, if the donor is not the intended father then it is possible for the surrogate to nominate a second parent (this could be the intended mother or father). This must be done before the medical process begins.
There are two routes by which the court can secure the permanent transfer of parental responsibility from the surrogate mother to the intended parents. The first is by making a parental order under the Human Fertilisation and Embryology Act 2008. This is the most common route.
The criteria for a parental order to be made are:
The court’s paramount consideration is the child’s lifelong welfare. The court will ask Cafcass (the Children and Family Court Advisory and Support Service) to provide a parental order reporter to help it make this decision.
If the application is granted, then the intended parents become the child’s legal parents and the surrogate (and her partner) are no longer legal parents. A new birth certificate is then issued.
Where the above route is not possible, for example neither of the intended parents are genetically related to the baby, then it will be necessary to apply instead for an adoption order.
The information on this website is intended as a guide and does not constitute legal advice. Vardags do not accept liability for any errors in the information on this website, nor any losses stemming from reliance upon the statements made herein. All articles and pages aim to reflect the legal position at time they were published, and may have been rendered obsolete by subsequent developments in the law. Should you require specialist advice, tailored to your situation, please see how Vardags can help you.