With expertise in surrogacy, parental orders, co-parenting, parental responsibility, fertility law and HFEA compliance, we make sure our clients get it right from the beginning, guiding them with sensitivity and professionalism through the myriad of legal complexity that surrounds this hugely personal area of law.

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Liz Bottrill | Partner
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Andrew Spearman | Partner
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David Burrows | Associate Partner
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Whilst there has been a rapid advancement in medical science allowing families to be created through a wide range of procedures, it still remains fundamental that two questions can be answered; who is my parent? Is this my child? The law was been written in an attempt to provide certainty so that these questions can always be answered. However, the inflexibility that certainty requires means that the answer is not always as expected or intended.

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Future parents, caught up in the excitement of having a child, sometimes overlook the legal mechanisms which need to be put in place, some of which need to be in place even before treatment has started. This means that the happiness of creating a family can sometimes be overshadowed by lengthy proceedings to fix past errors which are not always straight forward and some errors cannot be rectified.

Different procedures have different legal requirement. Sometimes it is as straight forward as ensuring a consent form is signed by the appropriate person at the appropriate time. Other times an application to court is required but it is important to take legal advice from an early stage to ensure that you know your options. 

 

Surrogacy is available for both heterosexual and same-sex couples (although in both scenarios, the couple must be married, in a civil partnership or an “enduring relationship”) and surrogacy arrangements are legal as long as certain criteria are complied with.

 

 

One of the key requirements is that the surrogacy arrangement cannot be on a commercial basis which means that save for certain permitted expenses payments, no money must change hands as part of the surrogacy arrangement or even the setting up of a surrogacy arrangement.

There are typically two types of surrogacy. The first uses the surrogate’s own egg together with the sperm of one of the commissioning parents (known as traditional surrogacy).

The second type is known as gestational surrogacy and uses either one of the commissioning parent’s eggs or a donor egg and either one of the commissioning parent’s sperm or donor sperm.

Whichever mechanism is used, it is important that the gametes (eggs or sperm) of one of the commissioning parents is used otherwise it is impossible to apply for a parental order. 

 
 

What is a surrogacy agreement?

Some commissioning parents and surrogate parents enter into what is known as a surrogacy agreement. This is an agreement which sets out all parties expectations throughout the surrogacy and following the birth of a child, including the making of the parental order.


What is the point of a surrogacy agreement?

Whilst a surrogacy agreement is not legally binding, it is still useful to have one. By drafting a surrogacy agreement, the parties to the surrogacy have a chance to sit together and talk through the practicalities of the surrogacy. It allows all parties to discuss and note down what they are expecting to happen. Through these discussions, it may be that different parties have different expectations about their involvement in the child’s life or in the practicalities of the surrogacy. By drafting a surrogacy agreement, these issues come to the surface and the parties can decide whether to go ahead with the proposed surrogacy arrangement or look at different options.

Furthermore, if there are problems and disagreements in the future, it can be useful to have evidence of what the parties understood the situation to be and their intentions. The court may take into consideration the parties’ intention when deciding how to deal with the disagreement.

 

Is it legally binding?

No, in the UK, a surrogacy agreement is not legally binding on any party to the surrogacy and cannot be enforced like a normal contract.

All parties to the surrogacy must freely consent to the parental order being made and that consent can be withdrawn at any time up to the point that the parental order has been made. If the relationship breaks down, the surrogate mother cannot be forced to hand legal parentage of the child over to the commissioning parents nor indeed can the commissioning parents be forced to apply for legal parentage of the child.

A legally binding agreement forcing somebody to do something at some time in the future is therefore contrary to the cornerstone of a parental order that all parties freely consent to the order being made.


Can you help me draft a surrogacy agreement?

No. In the UK, solicitors are not allowed to draft the surrogacy agreement. This is due to strict laws preventing surrogacy from being for commercial gain. This does not prohibit the parties themselves from reaching an agreement but we would be unable to review its terms or make suggestions to it. Certain “not-for-profit” organisations may be able to compile some information to assist with the preparation of the surrogacy agreement but they are not allowed to negotiate the agreement for you. 

Please find some frequently asked questions relating to surrogacy and parental orders.  If you have any specific questions, please do not hesitate to get in touch. 

 

I am single, is surrogacy for me?

Unfortunately at this time, a court can only make a parental order (extinguishing the parentage of the surrogate mother) for a couple who are married, in a civil partnership or in an ‘enduring relationship’. This means that you are unable to get a parental order.

However, there are pending changes to the law which my afford similar rights to a single person that are enjoyed by a couple.


We commissioned a surrogacy abroad, do we need a parental order in the UK?

If you (or your partner) are domiciled in the UK and want the child to be formally recognised in the UK as your child rather than the surrogate mother’s child, you will need a parental order regardless of any agreements reached or the legal status of the child in the country where the treatment is happening.


Is there a time limit for applying for a parental order?

Yes. You must apply for a parental order within 6 months of the child being born.

In some recent cases, the court has granted a parental order even when the deadline has expired but this is on a case by case basis depending upon the facts of the case. If you are unable to obtain a parental order, there may be other options which we can explore with you.


Can the surrogate mother be forced to transfer the legal parentage to the commissioning couple on the child’s birth?

No. Surrogacy in the UK is grounded in the concept that all parties freely consent to an order transferring the legal parentage of the child. If the surrogate mother refuses to consent to the transfer, she cannot be compelled.

There are other options available which we can discuss with you if this does occur.


Can I be held to a surrogacy agreement?

No. Please see the section on surrogacy agreements.


Can I ask for payment in exchange for being a surrogate?

Surrogacy cannot be for commercial reasons so you cannot ask for a fee in exchange for being a surrogate. However, the payment of reasonable expenses is permitted. There is no set list of ‘reasonable expenses’ and what is reasonable in one