The number of parents having a baby using a surrogate in England and Wales has almost quadrupled in the last 10 years, according to new figures. Parental orders, which transfer legal parentage from the surrogate, rose from 117 in 2011 to 413 in 2020. Two-thirds of applicants are now mixed-sex couples often in their 30s or 40s. The report is by the University of Kent and My Surrogacy Journey, a non-profit organisation which supports surrogates and intended parents. What exactly is surrogacy, what does it involve, and what are your rights?
Senior Associate Nicola McDaid explains.
There are a number of differing types of surrogacy now available, and UK law supports same-sex parents conceiving through surrogacy in the same way as it does different-sex couples.
There is what might be termed traditional surrogacy when the surrogate provides her own eggs to achieve the pregnancy. The intended father, in either a heterosexual or male same-sex relationship, provides a sperm sample for conception, through either self-insemination at home or artificial insemination with the help of a fertility clinic. If either the surrogate or intended father has fertility issues, then embryos may be created in vitro and transferred into the uterus of the surrogate.
Gestational surrogacy, when the surrogate doesn’t provide her own egg to achieve the pregnancy, is when embryos are created in vitro (the literal translation of which is “in glass”, in this case meaning outside their normal biological context), and transferred into the uterus of the surrogate, using the eggs of the intended mother, fertilised with sperm of the intended father or donor. Alternatively, it might involve the eggs of a donor, fertilised with the sperm of the intended father, where the intended mother cannot use her own eggs, or the intended parents are a same-sex male couple.
Your rights as a donor, a surrogate or an intended parent
Your rights differ depending on whether you are the donor, the surrogate, or the intended parent(s).
A typical situation is when a couple finds a surrogate, and all parties draw up and agree to, a contract whereby the baby is placed in said couple’s care when s/he is born. However, there are certain issues of which you should be aware:
- Surrogacy arrangements and contracts before/after birth are not legally binding in UK law and do not transfer parental responsibility, which means that the surrogate (in effect the birth mother) remains the child’s legal mother until the court makes an order removing her parental status. The woman who gives birth to a child is always considered the legal mother in UK law, even when using a donated egg
- Intended parents can make an application for a parental order which reassigns parenthood fully and permanently, and extinguishes the legal status and responsibilities of the surrogate (and her husband or wife.) Same-sex parents have been able to apply for a parental order since 6 April 2010.
How do you become a child’s legal parent?
As outlined above, you can apply for a parental order; if you are applying with a partner, you must meet the following criteria ( although this can be subject to interpretation and without question is ripe for amendment):
-
one of you must be genetically related to the child – in other words, be the egg or the sperm donor
- you must be married/civil partners/living as partners in an enduring family relationship
- have the child living with you
- reside permanently in either the UK, Channel Islands or the Isle of Man
- You must apply within six months of the child’s birth
If you are applying as a single person (enforced since 3 January 2019)
- you must be genetically related to the child, in other words, be the egg or sperm donor
- have the child living with you
- reside permanently in either the UK, Channel Islands or the Isle of Man
Whichever the scenario, the court must be satisfied that you have freely, and with full understanding of what is involved, agreed unconditionally to the making of the Parental Order. What’s more, the court must be satisfied that no money or other benefit ( other than expenses responsibly incurred) has been given or received by either applicant(s), unless authorised by the court.
If neither you nor your partner is genetically related to the child, adoption is the only way you can become the child’s legal parent.
For many, the surrogacy journey can be full of potential pitfalls and it is important that you research the subject as fully as possible; we would certainly advise you to consult a lawyer well-versed in the subject.
For example, if you donate sperm through a Human Fertilisation and Embryology Authority (HFEA) licensed clinic, you will not:
- be the legal parent of any child born
- have any legal obligation to any child born
- have any rights over how the child will be brought up
- be asked to support the child financially
- be named on the birth certificate
Bear in mind that if you use an unlicensed clinic to donate sperm, you will be the legal father of any child born from your donation, under UK law.
Some people, who consider the UK’s laws with regard to surrogacy to be restrictive, may seek help abroad. However, bringing a surrogate-born baby back into the UK is a legal minefield.
