Is surrogacy legal in the UK?

Surrogacy has become more common in the last few years in the UK. It is a situation whereby a woman (the “surrogate”) carries a child for a couple (the “intended parents”). Usually this is because the intended parents cannot carry a child themselves. There are different types of surrogacy depending upon the way in which the embryo is made.

This is a legal arrangement in the UK. However, in order for it to be legal, certain rules must be followed by the people involved i.e. the surrogate and the child’s intended parents. For example, a surrogate must only be paid for their “reasonable expenses” and therefore they must not profit from the arrangement.

The specifics of the surrogacy arrangement are usually recorded within a surrogacy agreement. However, it is important that all parties involved understand that this type of agreement cannot be enforced. This is regardless of whether the surrogate has signed the document or whether the intended parents have paid the surrogate for her reasonable expenses.

Where there is no dispute once the child is born, the intended parents can apply to the Court for a Parental Order. A Parental Order effectively transfers the legal parentage from the surrogate and if applicable, her spouse or civil partner, to the intended parents. The surrogate will need to consent in order for the Parental Order to be made, although, a surrogate can only give her valid consent once 6 weeks following the birth of the child have passed. If the surrogate is married or in a civil partnership, her spouse/civil partner will also need to provide their consent.

The default legal position is that the mother who gave birth to the child is the legal mother of that child. This means that if there is a disagreement as to who should be the child’s legal parents, the surrogate will be considered the legal mother. If the surrogate is married or in a civil partnership, her husband or civil partner will automatically be named the legal father of the child.

In such circumstances, the intended parents may be left with no alternative but to apply to the Court for a Child Arrangements Order. If an application to the Court has to be made, the Court’s paramount consideration will be the child’s welfare. They will also consider what is in the child’s best interests, by virtue of the welfare checklist.

Whilst it is possible for there to be a dispute due to the fact that surrogacy agreements cannot be enforced, in practice, the majority of surrogacy arrangements are reasonably straightforward.

The Law Commission have suggested that the current law on surrogacy requires reform. It is expected that there will be some proposed changes to the law in the near future which will provide intended parents with a new way to becoming the legal parents of their child from birth.

If you would like some further legal advice in relation to this issue, or any other family law matter, please contact our specialist children team who would be happy to assist.