Surrogacy Laws & Legal Advice.

In the law in England and Wales, both traditional and gestational surrogacy are permitted but there are certain restrictions. Under these laws, surrogacy cannot be used for commercial gain, meaning that it is illegal to advertise both for and as a surrogate. It is also against the law to make or accept payment for surrogacy services although reasonable expenses can be covered.

Any agreement made between a surrogate and the intended parent(s) is not legally binding or enforceable and a court intervention following the child’s birth will be required to transfer legal parenthood and parental responsibility. This will be done by either a parental order or adoption.

When a surrogate gives birth, she is legally the child’s mother and will, therefore, be named on the child’s birth certificate along with the second legal parent until it is replaced by a parental order or adoption certificate.

The second legal parent named on the birth certificate will depend on a number of factors including whether they are the child’s biological father.

Everyone’s situation is different but we are able to help you understand your own unique position and can advise on how to transfer legal rights and parental responsibility for your child.

Parental responsibility simply means all the legal duties and obligations that parents have for their children to provide a safe home, meet their needs, ensure proper arrangements for their care and education and make key decisions on their behalf such as:

• Their name
• Where they will go school
• The medical treatment they need
• Consenting to school and extra-curricular activities
• Travelling abroad
• Their religion, while also ensuring they are aware of the religious cultures and backgrounds of all those with parental responsibility

If for any reason, neither a parental or an adoption order can be made, the surrogate will continue to be the child’s legal mother and the court will have to agree on parental responsibility in a different way.

Most parents of a child born through surrogacy obtain legal parenthood through a parental order. This passes all legal rights and obligations for the child onto the intended parent(s) and permanently ends the legal relationship between the surrogate and the child.

An application for a parental order must be made within six months of the child’s birth. In order to apply the intended parent(s) must meet all the criteria laid out in the Human Fertilisation and Embryology Act 2008:

• The intended parent(s) must be 18 years of age or over.
• The intended parent(s) must live permanently in the UK.
• Conception must have taken place as a result of artificial insemination such as IUI or IVF.
• Single applicants must be biologically related to the child and at least one of the intended parents, where the applicants are a couple, must be biologically related to the child.
• In cases where there are two intended parents, they must be in what is considered an ‘enduring family relationship’. This would include a couple living together as partners, those who are married and those who are in a civil partnership.
• No payments, beyond reasonable expenses, have been made.

The process for obtaining a parental order following a surrogate birth is usually straightforward and you will be required to:

• Complete and submit an initial application form.
• Attend the first court hearing to establish the information required by the court.
• Obtain the necessary consent from the surrogate and, if necessary, her spouse or civil partner, once the baby has reached six weeks of age. Prepare a witness statement.
• Undergo an assessment carried out by a CAFCASS (Child and Family Court Advisory and Support Service) Officer by the court.
• Attend further court hearings for a final decision.

The court will consider all the circumstances surrounding each individual surrogacy arrangement carefully and will always act in the child’s best interests when deciding whether to grant a parental order. In most cases, however, securing the legal relationship between the child and their intended parents is the best course of action.

The time limit for applying for a parental order following a surrogate pregnancy and birth is six months. After that time an adoption order is generally the only option and a regulated adoption agency must become involved. An adoption order will also be required if both the egg and sperm used have come from donors, as neither of the intended parents are genetically or biologically related to the child.

An adoption order will sever the legal relationship between a child and their birth parents and transfer full, permanent legal responsibility to the adoptive parents.

In order to adopt, you must be over the age of 21 and live permanently in the UK. You can be single, married, in a civil partnership or living with your partner and can apply for the adoption order as a single applicant or as a couple.

We can provide advice and support and will help you with the entire legal process to guarantee the full legal rights and protections for your family.

In instances where the intended parents are not eligible for either a parental or adoption order, there are other court orders, which can be explored:

• Special Guardianship: Special guardianship is granted by the court to those it feels are best placed to care for the child until they reach the age of 18. A special guardian can override decisions made by any others who may also hold parental responsibility if they believe it is in the child’s best interests.
• Child Arrangement Order: A child arrangement order details with whom a child should live and who should have parental responsibility for them. It can also include information about any contact arrangements the child should have with other adults including biological family.
• Specific Issue and Prohibited Steps Order: These are designed to address particular matters relating to the upbringing of a child, detailing what action can and cannot be taken.
• Wardship: A child can be made a ward of the court, where the court itself has legal guardianship over them. It will make decisions about the child’s upbringing, including who is responsible for their everyday care, and the role the other adults involved in the child’s life should take.

Many of those exploring surrogacy as an option choose to travel abroad due to cheaper medical costs, greater availability of surrogates and various legal considerations such as being named on the original birth certificate.

Ensuring you meet all the legal requirements at home and abroad is key and receiving the correct legal advice is essential to guarantee that your arrangement is legal and that all the necessary documentation is in place before you bring your child home.

In some countries, pre-birth orders can be made so that intended parents have legal parenthood from birth. They are not recognised in England and Wales however, so a parental or adoption order will still be required to recognise the legal parenthood of the intended parents at home.

It is rare for either party in a surrogacy arrangement to change their minds but where a dispute does arise, the court will make a decision as to who should have parental responsibility and whether the child should have contact with any of the other adults involved.

The court will also intervene and make a decision if the surrogate and intended parent(s) cannot agree before the parental or adoption order is in place, for example, if the child requires medical treatment.

The court will always consider the most positive outcome for the child but if you are involved in a surrogacy dispute we are on your side and are here to help.

We can provide advice on how to proceed and can offer guidance and support on arbitration, mediation and negotiation to help you reach a swift and amicable agreement.