Is Surrogacy Legal in the UK?

Surrogacy vs. surrogacy agreements

What is surrogacy?

Surrogacy offers a legitimate way for individuals or couples to have a child who are unable to do so, perhaps due to medical reasons (e.g. infertility).

What is a surrogacy agreement?

Surrogacy agreements set out the details of an individual surrogacy arrangement, including the intentions of the parties involved, but are not legally enforceable. While they are not legally enforceable, they still provide a useful mechanism to show the details of the agreement reached. 

What are the different types of surrogacy in the UK?

There are two main types of surrogacy:

• Partial or traditional surrogacy – Whereby the child is genetically related to the father or sperm donor and the surrogate mother. 

• Total or gestational surrogacy – Whereby the surrogate is not genetically related to the child (in other words, they are a gestational parent). In this arrangement, the embryo may be created from a genetic mother’s egg and genetic father’s (or donor’s) sperm, a donor egg and genetic father’s sperm, or a donor egg and donor sperm.

What are the surrogacy laws in the UK?

The law around surrogacy in the UK is set out in the Surrogacy Arrangements Act 1985 (SAA 1985), Human Fertilisation and Embryology Act 2008 (HFEA 2008), and the Human Fertilisation and Embryology (Parental Orders) Regulations 2010 (SI [2010]/[985]) (HFE 2010). The key points to be aware of are as follows:

• The surrogate mother is viewed in law as the child’s legal mother – this is the case whether or not they are genetically related, unless a court order is made to the contrary.

• The surrogate mother cannot ‘surrender’ their parental responsibility or legal parenthood unless a court order is made to do so.

• If the surrogate mother is married, their husband is viewed by the law as the father of the child.

• The sperm donor is viewed as a genetic parent, but they do not have automatic parental responsibility for the child. 

• If the surrogate is not married, the sperm donor will be treated as the legal father, but they will still not have automatic parental responsibility for the child.

• The non-biological parent who commissioned the surrogacy arrangement has neither legal parenthood nor parental responsibility – only a court order can change this (see below).

• In order to permanently transfer parenthood and parental responsibility to the commissioning parents, it is necessary to make an adoption order or a parental order in accordance with section 54 of the HFEA 2008.

What is a parental order in a surrogacy arrangement?

If the court grants a parental order, this gives the status of legal parenthood and parental responsibility to the parent or parents who commissioned the surrogacy arrangement.

This means that the child then becomes their child, not that of the surrogate mother. 

Importantly, a parental order is legally binding, meaning that any legal connection to the child’s other parents, whether genetically related or unrelated, comes to a complete end. This is a lifelong arrangement. For this reason, the courts are extremely cautious about agreeing to a parental order.

Who can apply for a surrogacy parental order?

In order to apply for a parental order, the following requirements must be met by the applicants:

• Aged at least 18 years.

• One applicant must have provided the gametes (genetic material) used to create the embryo. Arrangements involving donor sperm and eggs are not permitted within the scope of the legislation.

• If two people apply for a parental order, they must be husband and wife, civil partners, or be living as partners in an enduring family relationship.

If you intend to apply for a parental order, you must do so within six months of the date of birth of the child by completing Form C51 (Application for a Parental Order (Section 54 Human Fertilisation and Embryology Act 2008).

What to consider before entering into a surrogacy agreement

Entering into a surrogacy arrangement can transform the lives of those who cannot have a child. It is important to take the time to understand the legal process of surrogacy, your legal rights, and what needs to be done to ensure that everything is done in a legally valid manner.

By instructing a family law solicitor to handle the legal process on your behalf, you can focus on making the necessary arrangements for your new child.

Guillaumes LLP Solicitors is a full-service law firm based in Weybridge, Surrey. Our highly experienced family law team can assist you in relation to your surrogacy arrangement or any disputes that may arise. To make an appointment, please call us on 01932 840 111.