To show our support for LGBT+ History Month this February, and with the rising interest in surrogacy for same-sex couples and other couples who cannot become pregnant for any reason, we feel it is essential that those seeking surrogacy understand the intricate legalities in the UK.
Some links to key resources for information about surrogacy can be found at the end of this article. If you need any further information, please get in contact with our Family Team who would be happy to help.
What is Surrogacy?
Surrogacy is when a woman carries and gives birth to a child for another person, or a couple. It may be that the surrogate is the biological parent, as well as the person who gives birth to the child (straight surrogacy). However, it is also possible for the intended parents to be the biological parents, or to conceive the child using a donor (gestational surrogacy).
Where there is a gestational surrogacy arrangement, the surrogate has no biological link to the child.
Surrogacy Law
Surrogacy is legal in the UK, but there are a number of key laws that you should be aware of. Surrogacy law in the UK is governed by the Surrogacy Arrangements Act 1985, with a few amendments made by the Human Fertilisation and Embryology Act 2008.
- The person who gives birth to the child (the surrogate) will be the legal parent of the child, whether there is a biological link or not. If the surrogate is married or in a civil partnership, their partner will be the other legal parent provided they have consented.
- Surrogacy Arrangements may be entered into in order to record how the intended parents and surrogate want the arrangement to work. However, these arrangements are not legally enforceable in the UK.
- Surrogates in the UK cannot be paid, except to meet their reasonable expenses.
- Surrogates cannot advertise their services to become a surrogate and, similarly, intended parents cannot advertise in order to find a surrogate.
- Third parties cannot arrange to find you a surrogate in order to make a profit. Therefore, many intended parents will use non-profit organisations to assist them with surrogacy arrangement.
- For the intended parents to become the legal parents of the child, they need to apply for a Parental Order or Adoption.
- Parental Orders are only an option if one of the intended parents is genetically related to the child, and a number of other requirements are met.
- If neither of the couple are genetically related, adoption is the only way to become legal parents.
Potential Changes to the Law
It has been widely recognised that the law surrounding surrogacy creates uncertainty for intended parents, surrogates, and the child(ren) themselves. The Law Commission have launched a project to reform the law of surrogacy. They are currently in the process of preparing a draft Bill and a full report detailing their recommendations is expected in Spring 2023.
However, until such time as the law is changed, it is important that those people who are interested in surrogacy obtain early advice to ensure they fully understand the process. If you have any questions, please contact our Family Team, who offer a free initial consultation.
Some key resources:
· Surrogacy: legal rights of parents and surrogates: Overview - GOV.UK (www.gov.uk)
