UK Surrogacy Law
Contrary to popular belief, surrogacy in the UK is not illegal, however, commercial surrogacy is. If you’re considering domestic surrogacy, we’re on hand to help you with the necessary legalities to ensure your new family is legally protected.
This includes ensuring you’re clear on the details of surrogacy before you embark on the process. For instance, under English law the surrogate mother is the legal mother of the child, even when the intended mother’s eggs have been used, and in order to extinguish the surrogate mother’s standing, a court order is required.
Our experienced Surrogacy Law team can advise you, whether you are a single parent, civil partner, married couple or cohabiting couple, on the variety of potential orders available and can advise you on the most appropriate order depending on your circumstances.
UK Surrogacy Law
Despite surrogacy being legal in England and Wales, there are still certain restrictions in the law that you need to be aware of. For example, the Surrogacy Arrangements Act 1985 expressly forbids advertising for a surrogate or advertising to be a surrogate. A breach of this Act is a criminal offence punishable by a fine, imprisonment or both. It is also an offence to broker a surrogacy arrangement on a commercial basis.
Also you need to be aware that surrogacy agreements are unenforceable in the courts in England and Wales even if a contract has been signed and the expenses of the surrogate have been paid. Family courts have proved sympathetic to intended parents applying to enforce a surrogacy arrangement, but there are no guarantees as they will always act in the best interests of the child.
Who are the legal parents of a child born through surrogacy?
Under English law, the woman who carries a child is the legal mother. So, the legal mother of your child born through surrogacy is always, at birth, the surrogate mother. This means that in surrogacy cases the intended mother has no recognition as a parent even if she is the child’s biological mother.
If the surrogate is married or in a civil partnership, her partner will be the second legal parent of the child, unless he/she did not consent to the treatment, and irrespective of the biological relationships. This means that the intended father has no automatic claim to legal parenthood even if he is the biological father.
If your surrogate mother is single at the time she conceives (or if her husband or civil partner does not consent to the arrangement), the surrogate will still be the child’s legal mother. But if the intended father is the biological father (i.e. the surrogate is not conceiving with donor sperm) then he will also be the legal father. If you, as the intended parents, are a gay couple, fatherhood will go to the partner who is the biological father.
Who goes on the birth certificate?
Only the legal parents can be named on the birth certificate where the birth is registered in the UK. The surrogate mother will register the birth and she is recorded as the child’s mother.
If the surrogate is married or in a civil partnership, her partner is recorded as the second ‘parent’.
If the surrogate mother is single, the intended father can usually be named on the birth certificate (if he is the biological father), although he must attend the birth registration in person along with the surrogate mother.