Surrogacy

Surrogacy is the process by which a child is carried through pregnancy by a woman who has entered into an arrangement (before she started to carry the child) with the intention that, at birth, the child and parental responsibility for it will be transferred to another person or persons, and that those person(s) will become the legal parent(s) of the child.

A surrogate mother is the person who carries the child. The commissioning parents are the couple who enter into the arrangement with the surrogate, with the intention that the child should become their child.

TYPES OF SURROGACY AVAILABLE FOR A HETEROSEXUAL COUPLE

There are two types of surrogacy:

  • Gestational surrogacy - If you have embryos in storage or are able to create embryos through IVF treatment (either using your own gametes or donated eggs or sperm), they can be transferred to a surrogate, who then carries a child she is not biologically related to.

  • Traditional surrogacy – Your surrogate donates her egg to you as well as carrying your child. She might conceive through IVF treatment or artificial insemination at a clinic or at home.

TYPES OF SURROGACY AVAILABLE FOR A HOMOSEXUAL MALE COUPLE

There are two types:

  • Gestational surrogacy – You create embryos with eggs from a donor and sperm from one of you, which are then transferred to your surrogate (who is therefore not the biological mother).

  • Traditional surrogacy – Your surrogate donates her egg to you as well as carrying your child, and so is the biological mother of your child. She might conceive through IVF or artificial insemination at a clinic or at home.

TYPES OF SURROGACY AVAILABLE FOR A HOMOSEXUAL FEMALE COUPLE

Surrogacy is uncommon for female couples, but it is not unheard of. If you’re planning to conceive a child together, with you or your partner taking on the pregnancy, that does not count as surrogacy.

If in your case it is not possible for either parent to carry the child then surrogacy could be a viable option.

Since your surrogate will be your child's legal mother, you will need to make sure you can secure your position as legal parents when your child is born. You will only be able to apply for a parental order (to become the legal parents) if one of you has provided the eggs. If neither of you is your child's biological parent, then surrogacy will be much more complicated, and will need very careful legal planning. It would be best to take legal advice before moving forward.

UK LEGAL REGIME

Surrogacy is legal in the UK. However, the law outlaws commercially arranged surrogacy, that is surrogacy for money, and advertising for surrogates, so finding a surrogate can be challenging.

Can a single person become a parent via surrogacy?

At present, surrogacy is prohibited for single persons in England and Wales. If you are single you can explore our section on adoption to examine other options open to you.

The law is likely to change in 2018. A draft remedial order has been sent to Parliament in order to change the law on surrogacy for single parents. If passed, it will enable single mothers and fathers to apply for secure legal status for their families in just the same way as couples can currently do.

This development has been expected since May 2016 when the President of the Family Division, Sir James Munby, made a declaration in Z (A Child) (No 2) [2016] EWHC 1191 (Fam) that section 54(1) and (2) of the Human Fertilisation and Embryology Act 2008 are incompatible with Article 14 of the European Convention on Human Rights, taken in conjunction with Article 8.

A surrogacy contract is a contract between a couple and their surrogate which outlines their agreement that the surrogate will carry a child to term who will then become the legal child of that couple. It will also work as an agreement of any expenses etc. agreed to be paid between the parties.

Surrogacy contracts are not enforceable in the UK, which means that everyone relies on each other to honour the agreement, both that the surrogate will hand over the child and the adopting couple will pay any expenses as well as other issues.

LEGAL PARENTS OF A CHILD OF A SURROGATE

Under UK law, when the baby is born the woman who gave birth (the surrogate) is the legal mother. You will have to change the parenthood of the child through a parental order.

If the surrogate is married when she conceives, her husband is the legal father unless you can prove that he didn’t consent to the conception (although this is not easy to prove, and a spouse can't simply 'opt out' of being the other parent). The same rule makes the surrogate's wife or civil partner the other legal parent if she is in a same-sex relationship.

If the surrogate is unmarried, in most cases the intended father will be the legal father (as long as he is the biological father). However, if conception takes place at a fertility clinic in the UK someone else can be nominated as the second legal parent, for example an intended mother or a non-biological father.

If the child is born in England or Wales, the surrogate mother must register the birth and will be registered as the mother (together with her spouse/ civil partner if she has one).

The child can still be given the intended parents' surname if everyone agrees.

If the surrogate is not married or in a civil partnership, then the other legal parent (one of the intended parents) can be registered as the father or second parent, provided they attend the birth registration. If that intended parent is not the biological father, they will need to produce the HFEA forms (https://www.hfea.gov.uk/about-us/how-we-regulate/consent-forms/) signed before conception to nominate them as a parent.

In the UK parenthood in surrogacy cases is resolved with a parental order. A parental order is a court order which makes the intended parents (the parents who sought the surrogacy) the legal parents of the child and permanently ends the parenthood of the surrogate and her spouse.

Once you have made a parental order, the birth will be re-registered to record both intended parents as the legal parents, and the child will receive a new birth certificate. The original birth certificate will be sealed as part of the Parental Order Register and similarly to an adopted child, they alone will be able to read it once they have turned 18.

PARENTAL ORDERS FOR A SURROGATE CHILD

To obtain a parental order, you must satisfy the family court that the order is in the child's best interests (as the child’s welfare is the court's most important concern) and that you meet all the criteria, which are:

  • The conception must have taken place by embryo transfer or artificial insemination, and the child must have been carried by a surrogate

  • One or both of the intended parents must be the child's biological parent

  • The intended parents must be married, civil partners or living together as partners in a long term family relationship (although the government has told Parliament that it will be changing the law during 2018 to enable single parents to apply too)

  • The intended parents must submit the application to the court within the six months after their child is born (although in some cases the court can extend this deadline)

  • At the date, they apply and the date the order is made the child must live with the intended parents

  • At the date they apply and the date of the order, one or both of the intended parents must be domiciled (that is, mainly live) in a part of the United Kingdom, Channel Islands or Isle of Man

  • The intended parents must both be over 18 when the order is made

  • The surrogate and her spouse must fully and freely consent to the order (unless they cannot be found or are incapable of giving consent). The surrogate cannot officially consent until the child is six weeks old

  • No more than reasonable expenses must have been paid, or the court must agree to 'authorise' the payments retrospectively.

PROCEDURE TO FOLLOW

The first step is to apply for a parental order by completing court Form C51 and submitting it to your local family court (or the Central Family Court in London in international cases):

https://formfinder.hmctsformfinder.justice.gov.uk/c51-eng.pdf

The court will then issue the application and will send you a copy, together with a Form C52. The next step is to give this to the surrogate (and her spouse), who should sign and return the C52 Form to the court:

https://formfinder.hmctsformfinder.justice.gov.uk/c52-eng.pdf

The court will appoint a parental order reporter (from CAFCASS), who will meet with the intended parents and (if possible, if she is based in the UK) the surrogate and her partner. The reporter will then write a report for the court making a recommendation about whether a parental order should be made.

Straightforward UK surrogacy cases are dealt with at the junior level of the family court. There will be one or two informal court hearings, and usually they will not require much evidence.

If there are any complicating or international issues, the application will be heard by a High Court judge. The procedure in the High Court is a lot more formal, and extensive evidence and legal argument is usually required.

INTERNATIONAL SURROGACY

You need to think carefully about (and take advice on):

  • How things work in the destination country - Is surrogacy legal? What regulation is there (if any) of the services you plan to use? Are the services well-established? Are they safe and ethically-run? Have you budgeted accurately?

  • Crossing borders - What nationality status will your child have? How long will it take to get the documentation you need to travel home?

  • Parentage - Will you be recognised as the legal parents of your child everywhere you need to be? What processes do you need to follow to secure your parentage?

We can recommend you a specialist whose advice will help you answer these questions in your specific situation.

In case of a child born through surrogacy abroad, UK law treats your surrogate and her spouse as your child's legal parents, even if you are the legal parents in the country where your child is born. In order to secure your status as the child’s parents in the UK you will need to apply for a parental order after the birth.

The application will be heard before a specialist judge in the High Court, who will assess the case based on:

  • Consent from the foreign surrogate - the UK court is careful to make sure that a foreign surrogate understands any documents she is asked to sign, and that the formalities have been properly complied with.

  • Payments - most international surrogacy cases involve payments of more than expenses to the surrogate and any agency. Since UK law expects parents to pay no more than reasonable expenses, the court must agree to 'authorise' any payments before it can make a parental order. The court has said it would not refuse an order which was in the child's best interests unless the case was one of the 'clearest abuse of public policy'. However, the court makes each decision on a case-by- case basis.

  • Domicile issues - one or both of the applicants for a parental order must be 'domiciled' in a part of the United Kingdom, Channel Islands or Isle of Man, that is have them as their main home.

You should definitely take specialist advice before you embark on anything.

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