If you are thinking of entering into a Surrogacy Arrangement, you should seek specialist legal advice to ensure that you fully understand the legal implications before proceeding to enter into the same.
The law on surrogacy remains a complicated area and there are various rules and restrictions which you need to be aware about for you and your family.
It is legal to enter into a Surrogacy Arrangement in the UK. However, it is against the law for a third party (including a Solicitor) to draft a Surrogacy Agreement for payment. It is also against the law for third parties to receive payment for arranging surrogacy, although there is an exemption for certain non-profit making organisations.
Surrogacy Agreements are unenforceable in the UK. In such circumstances, those persons party to the Agreement rely on each other to honour the agreement.
The child’s Mother will be the woman who carried the child during pregnancy, i.e. the surrogate.
If she is married, she and her husband (or wife/civil partner) will be the legal parents.
If the surrogate is not married (or her spouse does not consent), the biological father is the legal father. Alternatively, someone else (usually the intended mother or the non-biological father) can be nominated as the other parent. If you are looking to nominate someone else as the child’s legal parent, we would recommend that you seek legal advice at the earliest possible opportunity and in any event, prior to conception.
To resolve the issue of the surrogate being the child’s legal Mother, the intended parents can apply for a Parental Order. (Alternatively, the intended parents can look to adopt the child. For further information, please see our page on adoption).
The effect of a Parental Order is that the surrogate’s legal rights (and if applicable those of her spouse) in respect of the child are extinguished and the intended parents become the legal parents of the child.
Once a parental order is made, the birth will be re-registered to record both intended parents as the legal parents, and a new birth certificate will be issued. The original birth certificate will be sealed as part of the Parental Order Register and will be accessible only to the child once he or she is over 18 (in a similar way to an adopted child).
Applications for a Parental Order must be made within the first six months of the child’s birth. However, it cannot be made in the six weeks following the child’s birth as the agreement of the legal mother is ineffective in those first six weeks.
Our specialist team can advise you on making an Application for a Parental Order.