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Surrogacy is an exciting, life-changing decision. The process is priceless, resulting in the most wonderful gift for parents. Starting a family is also a highly emotive journey which is why it’s important to get the right legal advice and work closely with a specialist solicitor who can guide and support you through the surrogacy process, from beginning to end.

Our dedicated lawyers provide a wide range of specialist fertility services, including surrogacy advice. We act on behalf of intended parents who come to us at the start of their journey to discuss legal details and specific obligations that enable them to make informed decisions and move forward with their plans.

We understand how rewarding surrogacy can be which is clear from the smiles on our clients’ faces when their new baby arrives. We also appreciate the intricate emotions involved in your journey and we’re here with empathy, experience and expertise to guide you along the path to parenthood.

Our role is to make you, as parents, feel confident throughout the process, equipping you with knowledge, information and an attentive ear as your unique surrogacy journey unfolds.

Your questions answered

What is a parental order and why do I need one?

A parental order is the legal mechanism used to change who is considered as a child’s legal parent(s). A parental order extinguishes a surrogate’s status as the child’s legal mother and transfers the status of legal parent to the intended parent(s).

Obtaining a parental order is a critical stage in the surrogacy journey. It not only regulates who has legal rights and responsibilities towards a child on a day to day basis, but there are also lifelong implications for the child. Matters such as nationality and inheritance depend upon who is considered to be a child’s parents so it is important that the legal parents are not only formalised but are also who they are intended to be.

How do I obtain a parental order?

Obtaining a parental order is a court procedure and whilst that may sound daunting, the court is there to help you achieve the right outcome for your child. During the proceedings, the court will check that the criteria for granting parental order have been met and that the granting of a parental order would be in the child’s interests. Court proceedings cannot start until after the child is born but it is important to properly prepare for that application before the child is conceived to ensure that you are as confident as possible that the criteria for the granting of a parental order can be met.

What happens if the criteria for the granting a parental order cannot be met?

It is clearly better to plan and prepare to be well placed to comply with the criteria for granting a parental order. But sometimes things change or something doesn’t quite go to plan. If this happens it is important not to panic as there are often ways to get back on track or alternatives which could be considered if a parental order is no longer achievable. However you should seek prompt legal advice.

Certain criteria such as the consent of the surrogate are strictly applied and if a surrogate refuses her consent the court cannot grant a parental order. However other provision may be put in place to regulate the arrangements for the child allowing the child to live with the intended parents and for the intended parents to make decisions on behalf of the child.

Other criteria, such as the 6 months time limit for making the application for a parental order, can be a little more flexible and if there is good reason why the a criteria has not been complied with, the court may grant the order.

Can same sex couples create a family through surrogacy?

Yes, in the UK the laws relating to surrogacy apply equally for same sex couples as they are for opposite sex couples. As long as the criteria for obtaining a parental order are met, same sex couples can have a child through surrogacy and apply for a parental order.

Is surrogacy for members of the LGBT community possible?

Yes, surrogacy laws do not discriminate based on sexual orientation or sexual identity so members of the LGBT community are able to apply for a parental order to complete the surrogacy journey.

Do I need to be married or in a civil partnership to have a child through surrogacy?

No, there are several categories of people who can apply for a parental order which is a key stage in completing a surrogacy journey. Those categories are:

  • a couple who are married or in a civil partnership
  • a couple who are in an “enduring family relationship”
  • a single person can apply on their own

It is important to remember however that there must be a biological link between the child and at least one of the applicants so if a couple are applying, one of the couple’s gametes (sperm or egg) must be used to create the embryo and if the applicant is a single person, their egg or sperm must be used to create the gamete.

Who is named on the child's birth certificate when the child is born?

If the child is born in the UK, the surrogate is considered as the child’s legal mother and is named as such on the child’s birth certificate. The identity of the second parent depends on the particular circumstances.

Once a parental order is granted, the intended parents (who by that time are also the legal parents) can apply for a new birth certificate which would name them as the child’s parents.

Should I go abroad for surrogacy?

Whether to base your surrogacy in the UK or abroad is a personal choice, each with their own pros and cons. There is a well-trodden route in the UK making domestic surrogacy a viable route but the altruistic approach to surrogacy which underpins the surrogacy laws here can limit the number of women willing to act as surrogates which may slow down the process.

International surrogacy is often said to be slicker but can often be more expensive and introduces issues such as immigration considerations and in more recent times, the risk of country entry requirements and quarantine procedure changing with little notice.

It is important that you research all your options and are familiar with the implications of taking a particular route before embarking too far down a particular path.

Whichever way you go, you still need a parental order granted by a court in the UK to finalise the process. Even if under the laws of the country where the surrogacy was based the intended parents are considered to be the child’s legal parents, this is not recognised by the UK and in the UK, the surrogate would still be the child’s legal mother.

What happens if our surrogate changes her mind?

The law is clear that a surrogate must give her unequivocal consent to a Parental Order being granted and if she changes her mind before the granting of the consent order, the Court cannot override her consent and the parental order cannot be made.

However, if this happens, there are a number of options available which can be considered to regularise the arrangements for the child. This includes making orders determining who the child lives with and what time (if any) the child spends with other interested parties. The court can grant parental responsibility to the intended parents allowing them to make the key decisions in the child’s life and limit the ability of the surrogate to make such decisions. A further option available to the court is for the intended parents to adopt the child.

Can I pay somebody to be a surrogate?

Surrogacy in the UK is altruistic which means that it is not possible to pay a fee to somebody to act as your surrogate. A surrogate is entitled to being reimbursed for her reasonable expenses. What is reasonable depends on the particular circumstances but would typically include items such as maternity clothes, related healthcare and medical costs, travel, loss of income for time off work. It is important that records of any expenses which have been paid are kept to help justify the cost should the court wish to check that only reasonable expenses have been paid.

Am I entitled to paid time off if my child is conceived through surrogacy?

Maternity pay and leave is available to the surrogate in the same way as if she had given birth outside a surrogacy arrangement – the fact it is intended that the child will be with the intended parents from birth has no bearing on her entitlement.

Intended parents in a surrogacy arrangement may be eligible for Adoption Pay and Leave and Paternity Pay and Leave.

Both are subject to eligibility requirements so it is worth checking you are eligible whilst planning your surrogacy journey.

Can you draft a surrogacy agreement for me?

Unfortunately not. It is a criminal offence for somebody to negotiate a surrogacy arrangement on a commercial basis so we would not be able to draft an agreement for you or help you to negotiate the terms of such an agreement.

It is however permitted and often encouraged that an agreement is entered into between the intended parents and surrogates setting out what everybody agrees should happen and how the surrogacy will work. Non-profit organisations are permitted to initiate such negotiations and compile information to help you with this so are often a good starting point.

Surrogacy agreements cannot be enforced so you cannot “sue” if somebody does not uphold the terms of the agreement in the same way as if somebody breached a contract. However, surrogacy agreements can be beneficial as they ensure the parties sit down together to discuss their expectations so any difference of opinion can be flushed out before the pregnancy is underway. They also record the parties’ intentions as to what should happen once the child has been born. Such evidence can be invaluable if the court is unable to make a parental order and needs to decide what alternative arrangements need to be put in place for the child.

Contact a specialist

David Burrows

Associate | Family & Matrimonial

+44 (0) 330 137 3211

+44 (0) 773 846 2840

Email David Burrows

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Rachael Longman

Associate | Family & Matrimonial

+44 (0) 330 137 3212

+44 (0) 773 052 1899

Email Rachael Longman

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