For many who are unable to conceive or have been unsuccessful through fertility treatments, an option available to have a child of their own, is surrogacy.
Couples looking at this option however need to ensure they know the intricacies of the law surrounding surrogacy, which if not followed could cause issues of parental responsibility in the future.
Surrogacy in the UK is not illegal, but commercial surrogacy is. This means that a surrogate cannot be paid to carry a baby, she will only be able to charge for ‘reasonable expenses’.
It is also illegal to advertise for the services of a surrogate. The best way to find a surrogate is to use a reputable non-profit organisation who will help intended parents and surrogates meet.
It is always advised to enter into a surrogacy agreement, that sets out the intentions of both sides, but it must be noted that these agreements are not legally binding, either side may pull out at any point. An agreement helps however in ensuring both sides know what is expected and what will happen in certain situations.
Once the baby is born it is important that the intended parents apply for a parental order before the baby is 6 months old. A parental order releases the surrogate from her responsibility and transfers it to the intended parents. This may seem a strange concept when the baby may have no genetic link to the surrogate, however, under UK law, the woman who gives birth to the baby is the legal parent, as is her husband or civil partner, unless they have stated they did not consent to the surrogacy. The baby will be registered on the birth certificate with the surrogate as the legal mother and her partner as the legal father or second parent, until a parental order is made, whereby the intended parents will be listed.
To apply for a parental order, there are certain conditions that must be met:
- The child must have a genetic link to at least one of the intended parents
- The child must be carried by the surrogate following artificial insemination or egg or embryo transfer
- The application is made within 6 months of the birth, although some exceptional cases have allowed extensions
- At least one intended parent is domiciled in the UK
- Each intended parent is over the age of 18
- No payment, other than reasonable expenses was made by the intended parents in relation to the surrogacy arrangement, the consent of the surrogate and her spouse or the making of a parental order
- The consent from the surrogate (and her partner if married or in a civil partnership) must be given for the making of a parental order
If a parental order is not sought, or it is left too long before applying, this could cause future problems from simple things like choosing where the child goes to school to more serious implications such as inheritance, and nationality.
It must also be noted that where intended parents seek a surrogacy agreement abroad, even if they are made the legal parents on the birth of the baby in that country, they will be required to apply for a parental order on the return to the UK to be considered the legal parents of the child.
There are many strict rules surrounding surrogacy in the UK and before embarking on the journey into parenthood with the help of a surrogate it is always best to get advice from professionals or non-profit organisations who specialise in the subject. Note however that solicitors are able to advise on the intricacies of the law, especially with applying for parental orders, they are unable to negotiate a surrogacy agreement as this would be against the law.
CP Law’s team of expert family law solicitors are on hand to provide advice around surrogacy issues. Speak to a member of our team today, contact us on 0345 2413100 or email us at firstname.lastname@example.org.