Surrogacy Law in the UK
The law on surrogacy in the UK is set out in the Surrogacy Arrangements Act 1985, Human Fertilisation and Embryology Acts 1990 and 2008. In summary, the law in the UK is as follows.
The act of surrogacy is lawful in the UK. The act of surrogacy involves a woman (‘the surrogate’) carrying a baby for the intended parent(s) with the intention of that person or persons being the legal parent(s) of the baby.
At least one of the intended parent(s) will have a genetic link to the baby. The surrogate carrying the baby may or may not have a genetic link.
The surrogate is recognised in law as the mother of the child. The surrogate mother will automatically obtain parental responsibility for the child at birth. If the surrogate mother is married or in a civil partnership, their spouse or civil partner will automatically be recognised in law as the father or second female parent of the child, unless it can be shown they did not consent. If the surrogate is not married or in a civil partnership, then one of the intended parents will be recognised as the second legal parent at birth.
Parental Order
To ensure that the intended parent(s) are recognised in law as the legal parent(s) of the child, a Parental Order is required. A Parental Order terminates the legal parentage of the surrogate mother (and her spouse/civil partner) and transfers legal parentage to the intended parent(s). This includes the termination of parental responsibility of the surrogate mother (and her spouse/civil partner) and transfer of parental responsibility to the intended parents(s).
The purpose of a Parental Order is to allow child(ren) born via surrogacy to be recognised formally as the child(ren) of the intended parents and to reflect the parental status of a child as always intended.
Criminal Offences
Commercial surrogacy is unlawful in the UK. A surrogate cannot be paid (with the exception of reasonable expenses). It is a criminal offence to enter into a commercial arrangement for surrogacy.
It is a criminal offence to advertise that you are willing to act as surrogate or that you are looking for a surrogate.
Surrogacy agreements are documents which record the intentions of the surrogate and the intended parent(s) once the child is born. Surrogacy agreements are not unlawful but they are unenforceable. It is a criminal offence to make or negotiate a surrogacy agreement on a commercial basis. This means a lawyer cannot to negotiate a surrogacy agreement.
Early legal advice
It is important that any party to a surrogacy arrangement seeks early legal advice about the implications.
A specialist family lawyer can advise you about legal parentage, parental responsibility, Parental Orders, the court process as well as the (un)enforceability of surrogacy agreements.
How we can help
If you would like to receive personalised advice please contact Lydia Murray on [email protected] or call 01392 301097.
Wollens has offices in Torquay, Exeter and Barnstaple in Devon.
