Looking to the future, in partnership 

Our team at Family Law in Partnership recognise the need for a holistic approach to all family matters, none more so than surrogacy. We will work to provide the help and expertise needed in all areas to help you navigate this journey as informed and supported as possible from the beginning to the end.

Surrogacy is where a woman carries and gives birth to a child for another person, or a couple. It is becoming an increasingly popular path to parenthood for those who are unable to conceive a child themselves. It is possible to enter into a surrogacy agreement in the UK but it is not legally enforceable. In the UK, whatever the biological position or where the child is born, the surrogate will always be recognised as the legal mother. If she is married her spouse will be recognised as the child’s second legal parent. Whilst the Law Commission has proposed a change to this, currently it remains the case that intended parents still need a parental order to be recognised as the child’s legal parents.

It is therefore crucial to understand the legal issues that may arise as part of any surrogacy arrangement. We regularly advise parents who are seeking parental orders from the Court to deal with such matters.

At FLiP you will benefit not only from our exceptional legal expertise, where we can help you navigate the legal process and related practical issues, but also from the insight and understanding of our specialist relationship therapists. They can work with you to help you  make the considered decisions necessary to ensure the process can run as smoothly as possible for everyone involved both in the immediate and longer term.

If you are a same sex couple considering surrogacy, we will also draw on our unrivalled expertise in dealing with the legal issues that affect same sex couples in our work with you. You can find out more about our leadership in same sex issues here.

Surrogacy often involves the need for expert advice on immigration issues and the input of family lawyers working in other jurisdictions. We may also need to seek advice from barristers here who specialise in surrogacy arrangements. Over the years we have developed contacts with top class specialists both at home and abroad across a wide range of disciplines. We can draw on this deep resource of talent to support you with whatever assistance you may need.

We are also members of the Donor Conception Network (found here), one of the UK’s leading organisations supporting donor conception families, which can assist us to help you make contact with any other resources you may need.

My partner and I are both UK citizens living in London. We are thinking of using a surrogate mother based abroad. Can we do this?

Yes, you can. However, the law varies from country to country so managing the legal issues can be tricky. You need to select the country in which the surrogacy is to take place carefully and fully understand the legal implications of your choice of jurisdiction. You need to think carefully about whether surrogacy is even legal in the country you are considering, whether the support and matching services are regulated, what legal processes you need to follow, what will go on your child’s birth certificate, whether they will be born a national of the country in which they are born and whether you will be able to obtain a passport for them. You then need to consider the orders necessary back in the UK to secure your legal parenthood.

If our baby is born abroad to a surrogate mother, what legal implications might this have for our baby?

You will need to consider both the family law and the immigration law issues. You will first need to determine how to get the baby home.  Questions such as whether the baby automatically becomes a citizen of the country in which it is born and whether you will be able to obtain a passport for them will need to be considered. You will also need to consider the orders necessary to secure your legal parenthood when the baby is back in the UK as, whatever the biological position or wherever the child is born, the surrogate will always be recognised as the legal mother initially.

Do we automatically become the legal parents of the baby once it is born?

Not necessarily. In most overseas surrogacy destinations, you will be recognised as your child’s legal parents from birth. However, this will not be the case in the UK. Here, whatever the biological position or wherever the child is born, the surrogate will always be recognised as the legal mother and, if she is married, her spouse as the father or send legal parent.  In order to resolve this situation, you will need to apply for a parental order following the birth.

Can one person alone apply for a parental order?

Yes. The law was changed in January 2019 to provide that one person may apply for a parental order.

What is a parental order?

In England and Wales, whatever the biological position or wherever the child is born, the surrogate will always be recognised as the legal mother and, if she is married, her spouse as the father or send legal parent. This will remain the case until a parental order is made by the court, transferring legal parenthood to the intended parent or parents.  Once a parental order is made, a UK birth certificate will be issued, replacing the original and recording the intended parents as the legal parents. To obtain a parental order, the intended parent/s must satisfy various criteria as detailed in the Human Fertilisation and Embryology Act 2008. The Order is then applied for through the Family Courts.

Why would I use adoption rather than a parental order?

If you do not meet the necessary criteria to allow you to apply for  a parental order, an adoption order is the closest alternative. Like a parental order, it extinguishes the surrogate parents’ responsibilities and gives permanent parental status to the intended parent/s. The law and process on using adoption after surrogacy is not straightforward or well tested, but it is possible.

The Law Commission carried out a consultation on surrogacy law which closed in 2019. Its recommendations for reform were published in March 2023 and we now await the Government’s response to these recommendations, due in Autumn 2023.

The Law Commission’s recommendations for reform can be found here.