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Surrogacy in the UK is legal but it is restricted by various legal rules which are essentially designed to prevent formal commercially arranged surrogacy.
There are two types of surrogacy:-
- Host or gestational surrogacy is where you have embryos in storage or can use your own eggs or eggs from a third party donor (or donor provided by a clinic). Host surrogacy will involve IVF treatment in the UK or abroad;
- Straight surrogacy is where the surrogate mother donates her egg as well as carrying your child. This can be achieved through IVF or artificial insemination at a clinic or home.
Arranging surrogacy in the UK
It is a criminal offence in the UK to advertise that you are looking for a surrogate mother or willing to act as a surrogate mother. It is also a criminal offence to negotiate a surrogate arrangement on a commercial basis. This is why we cannot negotiate with your surrogate as to the terms of your agreement nor are we able to help you look for a surrogate. It is illegal for us to write a surrogacy agreement for you. We can however advise you how the law applies to your situation.
There are non-profit making organisations such as COTS and Surrogacy UK which operate legally in helping surrogacy agreements to be made.
Surrogacy agreements are not legally binding in the UK, however this does not automatically mean that there is no remedy if the surrogate mother changes her mind.
Predominantly due to restrictions on surrogacy arrangements in the UK, many people are now looking to commercial organisations abroad to help them meet a surrogate. Under UK law it is unlawful to pay money to a surrogate over and above reasonable expenses. International applications will be scrutinised carefully to make sure that the arrangements have been managed responsibly.
The parents of a surrogate born child
The mother of a child born through surrogacy is always the legal mother following birth. This means that the intended parent has no immediate legal recognition even if she is the biological mother through host surrogacy. Who is the legal father in surrogacy cases depends largely on the relationship status of the surrogate. If the surrogate is married or in a civil partnership her partner will normally be the legal father or second parent, unless the spouse or civil partner did not consent. If the surrogate is unmarried, then the biological father will usually be the legal father, although in certain situations he can nominate the intended mother as the second parent. Only the legal parents can be named on the first UK birth certificate. After a parental order is granted the intended parents are issued with a new birth certificate.
For married, unmarried or same sex couples an application to court for a parental order can be made to reassign parenthood to the intended parents and extinguish the legal status of the surrogate mother and her husband or civil partner. To apply for a parental order, the conception must have taken place artificially, the surrogate and her husband or civil partner must freely consent and usually no more than reasonable expenses must have been paid. One of the parents must be the biological parent. Whilst a parental order application is being made, there are additional steps that can be taken to secure temporary legal status for the intended parents. Whilst single parents are not prohibited from surrogacy arrangements parental order applications cannot be applied for by a single parent, this makes the legal position between the intended parent and the child in the UK precarious.
Why we are different
If you are considering surrogacy we can provide sound and sensible advice to intended parents and surrogates of their legal status during pregnancy, following birth and beyond. Contact us to arrange a confidential chat. We will be able to provide you with further information and the options available.
Your Next Step
For more information, call us today on 0208 882 9850