Essential facts and vital support
Hall Brown’s Children Family Law team offers expert advice on the essential legal issues associated with starting or adding to a family via surrogacy, whether through a domestic or international surrogacy arrangement.
We know how challenging the process can be and understand that, just as no two families are the same, those embarking on the surrogacy process need support tailored to their unique circumstances at every stage – before conception, during a pregnancy and even after their child has been born.
Surrogacy law is complex and the process is not always entirely straightforward, so it’s important to obtain legal advice before you start out.
Below, we have set out some of the main things to think about if you are considering that surrogacy is possibly for you.
Surrogacy is the practice by which a woman (the ‘surrogate’) becomes pregnant with a child on behalf of another family or individual (known legally as ‘the intended parent(s)’).
There are two types of surrogacy:
- ‘Traditional’ – in one of the surrogate’s own eggs and the sperm of the intended father is used; or
- ‘Host’ – whereby the surrogate has no genetic link to the foetus due to the use of IVF to implant the egg and sperm of intended parents or donors.
In the UK, surrogacy is governed by two pieces of legislation – the Surrogacy Act 1985 and the Human Fertilisation and Embryology Act 2008 – although the Law Commission has recently proposed that further changes be made to the existing process.
Whilst surrogacy is perfectly legal in the UK, ‘commercial surrogacy’ – surrogacy for the purpose of commercial gain – is banned.
A child can only have two legal parents. Even if you are the biological parent, it does not necessarily mean that you are regarded as a legal parent.
The legal mother is the woman who carried and gave birth to the child – therefore, the surrogate in a surrogacy arrangement.
If she is married, her husband will be the child’s legal father. If the surrogate is not married, the legal father will be the biological father.
In order for intended parents to become the legal parents of a child born as the result of a surrogacy arrangement, they need to obtain something known as a Parental Order. Once that happens, the parental responsibility of a surrogate ends.
As things stand in England and Wales, a Parental Order can only be obtained after birth. If a ‘pre-birth’ order is granted by a foreign court, it will not recognised here.
Once a Parental Order has been granted, a new birth certificate will be issued.
Hall Brown’s specialist lawyers can guide you through every stage of the process, providing both practical and legal advice – before conception, during pregnancy and after birth.
That includes not only preparing your Parental Order application for submission to court and preparing your formal statement in support of your case but representing you at the various hearings required, as well as advising you on the role of an individual known as the ‘Parental Order Reporter’, the official who will assess the child’s welfare.
It’s important to realise that a surrogacy agreement in any form is not legally binding. There cannot be a transfer of legal parenthood without a Parental Order and that can only be granted by a court.
If your surrogate lives abroad and your child is going to be born there, there are various additional factors which need to be considered, such as how parenthood is legally determined in that country; immigration and visa issues; and – crucially – whether the arrangements in that country correlate with the law in England and Wales. The most common options for surrogacy overseas are the USA, Canada, Greece, Georgia and Ukraine.
No matter what the destination, we work closely with both international surrogacy and immigration specialists to ensure that your child can move to its new home in the UK with the minimum of stress.
Another reason why legal advice is so important is that – although infrequent – disagreements do occasionally arise between the surrogate and intended parents and even between intended parent themselves.
Hall Brown can take you through any dispute, giving you the reassurance and practical help throughout to bring about an outcome which is in the best interests of you and your child.
Surrogacy is an evolving area of law. For example, on 3 January 2019, parental orders became available to single parents as well as couples. The Law Commission published their provisional surrogacy law reform proposals in June 2019 (https://www.lawcom.gov.uk/document/surrogacy-consultation/) and their final report is expected in early 2022. Given these developments, it is vital you obtain up to date advice from a specialist solicitor.