Morton Fraser Partner Fiona Sasan
Fiona Sasan
28 September 2015

As women are spending more time developing their careers and smashing glass ceilings in the work place, record numbers of parents in the United Kingdom are turning to surrogacy to achieve their dreams of parenthood.  Surrogacy is when another woman carries and gives birth to a baby for the couple who want to have a child. Whether for social or medical reasons our courts are increasingly granting orders to regulate the legal status of a child where such child has been born to parents through a surrogacy arrangement.

Surrogacy arrangements can take two forms; Full surrogacy (also known as Host or Gestational surrogacy) which involves the implantation of an embryo created using either: the eggs and sperm of the intended parents, a donated egg fertilised with sperm from the intended father, an embryo created using donor eggs and sperm; and Partial surrogacy (also known as Traditional surrogacy) which involves sperm from the intended father and an egg from the surrogate. Here fertilisation is done by artificial insemination or intrauterine insemination (IUI).

Surrogacy involves complicated legal issues and it is critical to take advice from an appropriately qualified individual at an early stage. Surrogacy arrangements in the UK are unenforceable and accordingly if the intended parents refused to make an agreed payment to the surrogate or if the surrogate refuses to deliver the baby to the intended parents, the courts will not enforce the agreement. Commercial surrogacy is illegal in the UK and negotiating a surrogacy agreement is an offence. It is also illegal to advertise for surrogacy.

The intended parents on surrogacy are not automatically the legal parents of the child and in most cases both parents would have to apply to the court for a Parental Order to regulate their position. In the UK the surrogate will always be the legal parent of the child irrespective of whether she has any genetic link to the child or not. This is not the case in all countries though. The father for the purposes of UK law will depend on the circumstances of the surrogacy, for example if the intended father is also the genetic father and the surrogate is not married then he can be named as the legal father of the child. If the surrogate is married then her spouse will legally be the father of the child.

The means by which intended parents become the legal parents of a child is through a Parental Order. There are certain requirements which the court requires to make out before any such order can be granted. Firstly the birth must be to a surrogate born as a result of artificial insemination, the applicant must be a couple, the genetic material of at least one of the parents must have been used to create the embryo, the application must be made within 6 months of the child's birth, the child must be living with the intended parents at the time of the application and when the order is made, at least one of the applicants must be domiciled in a part of the UK and both be over the age of 18 years old. The surrogate and her spouse if she has one must have given their consent to the Parental Order at least 6 weeks after the birth of the child. Finally the court must be satisfied that no money or other benefit, beyond "reasonable expenses" has been given for any part of the surrogacy or parental order process. 

The reasonable expenses requirement can be problematic particularly where the surrogacy has taken place in a country which allows commercial surrogacy. Many couple in the UK look abroad to countries where surrogacy on a commercial basis is legal. This often provides a much greater chance of securing a surrogate but at the same time it introduces more complex issues of international family law and immigration law. Other countries have different legal approaches to surrogacy and in particular as to the legal status of the intended parents. In some countries the intended parents are the legal parents of the child by virtue of law and this can be legally enforced in some countries but not in the UK. This is problematic particularly when, for example, the surrogate is married and accordingly the legal status of the intended parents is not reconcilable with the approach taken in the UK.

It is vital that intended parents who wish to consider surrogacy take expert advice both in the country where they live as well as in the country where the surrogacy will take place in order that their efforts to build their future family are made attainable. 

Please contact myself or another member of our family law team if you need any advice on legal matters relating to surrogacy.


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