An introduction to surrogacy and the law in the UK

What is surrogacy?

Surrogacy is an arrangement in which a woman, the surrogate, carries and gives birth to a child for an intended parent or parents. This can either be through traditional surrogacy or gestational surrogacy.

• Traditional surrogacy involves conception using the surrogate’s own egg, either through artificial insemination or IVF. As the surrogate’s own egg is used, this means that she is genetically related to the child.
• In gestational surrogacy, the embryo is created using an egg from either a donor or the intended mother and therefore the surrogate does not share any genetic connection with the child that she carries.

In the UK, surrogacy operates on an altruistic model. This means surrogates may only be reimbursed for their reasonable expenses. For example, this can include maternity clothing, loss of earnings and travel to appointments. However, this differs from countries such as the United States. There, commercial surrogacy is permitted and surrogates may receive payment for their services.

What is legal parentage?

In the UK legal parentage differs from parental responsibility. It is important that the two are not confused.

Legal parentage determines who the law recognises as a child’s legal parents. This status carries significant legal consequences, including:

• The citizenship and domicile of the child.
• The financial responsibilities for the child.
• The rights of inheritance from the parent.

What is Parental Responsibility?

Parental responsibility, by contrast, refers to the rights and responsibilities that allow an individual to make decisions about a child’s upbringing. This includes matters such as:

• The child’s schooling.
• Consenting to medical treatment on behalf of the child.
• Naming their child and agreeing to subsequent changes of their name.
• Determining the religious upbringing of the child.

Importantly, a person may have parental responsibility without being a child’s legal parent as the two concepts can operate independently. However, both legal parentage and parental responsibility are essential foundations. Together, they ensure that parents have the authority and recognition that is essential for caring for their child.

Who holds the legal parentage for a child born through surrogacy?

When a child is born through surrogacy, their legal mother at birth is the woman who ‘is carrying or has carried a child’ and ‘no other woman’  regardless of the genetic connection, according to s33 (1) of the Human Fertilisation and Embryology Act 2008.

With regard to the child’s second legal parent, this is dependent on the surrogate’s circumstances. For example, if the surrogate is married or in a civil partnership, their spouse or civil partner will be recognised as the second legal parent. This is provided that they have consented to the treatment. However, if these conditions are not met and the intended father has a genetic link to the child, he may be considered as the legal parent.

This means that the intended parents will not usually be recognised as the child’s legal parents at birth, even where they have a genetic connection to the child. It is therefore essential that it is understood by the intended parents, the surrogate mother and her spouse or civil partner, if applicable. They must know the steps that need to be taken to ensure that the legal parentage and parental responsibility for the child is transferred to the intended parents.

The repercussions

Without this, they may face serious repercussions due to not being recognised as a legal parent under UK law. For example:

• The intended parents may not have the authority to make decisions regarding the child’s medical care meaning they would have to locate and consult the surrogate regarding decisions in relation to the child.
• Legal complications may arise should they decide to divorce or separate.
• There may be difficulties with inheritance.
• The intended parents may not be able to travel abroad with the child.

How can the intended parents obtain legal parentage for a child born through surrogacy?

In order for the intended parents of the child to obtain legal parentage, they will need to apply for a parental order. This order will transfer the legal parentage and parental responsibility from the surrogate mother, and her spouse or civil partner if applicable, to the intended parents. It is important to note that in the UK a parental order is necessary irrespective of where the surrogate mother resides. This applies regardless of the domestic law in that country.

How do you apply for a Parental Order?

S54 of the Human Fertilisation and Embryology Act 2008 sets out the criteria which must be fulfilled in order for a parental order application to be made.

1. Genetic link – The child must have been carried by a woman who is not one of the applicants and at least one of the intended parents must have a genetic link to the child.
2. Relationship Status– The applicants must be married, in a civil partnership or in an enduring family relationship. An enduring family relationship means that, for example, a couple in a platonic, coparenting relationship would be able to meet this criterion. It is also important to note that since The Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018 a single parent can now also apply for a parental order in the UK to become the legal parent of a child born through surrogacy. However, this person will have to solely meet all the criteria.
3. Time limit– The intended parents must make the application within six months, beginning with the day the child is born. However, the court has been known to show discretion to safeguard the child’s lifelong welfare, by ensuring that the legal parentage reflects family structures. This was demonstrated in the case of Re: X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam) where there had been written evidence that the surrogate parents consented to relinquishing their rights in relation to the child; however, the intended parents had not taken the steps to obtain a parental order as they were not aware of this requirement. The court therefore made this order outside of the six-month period, emphasizing that the child’s welfare was paramount.
4. Domicile– The child’s home must be with the applicants and at least one of the intended parents must be domiciled in the United Kingdom, the Channel Islands, or the Isle of Man. However, when surrogacy is taking place overseas this home can be temporary whilst the family awaits the necessary travel documents.
5. Age– The intended parents must be at least 18 years of age.
6. Consent– The surrogate mother, and her spouse or civil partner if applicable, must freely and with full understanding of the order give their consent. This consent however cannot be given until six months has passed since the surrogate mother gave birth. However, in situations where the surrogate mother is incapable of giving consent or cannot be found the court may still make the order. It is therefore important to ensure there is an open line of communication between the parties during this time.
7. Payment– The court must be satisfied that only the reasonable expenses of the surrogate mother have been paid. As previously mentioned, this includes payments for travel to appointments and loss of earnings, for example.

What is a C51 Application?

To demonstrate that the above criteria are met, the intended parents will need to file a C51 application. This will be served on the surrogate to formally initiate parental order proceedings.

After this, there will be a directions hearing where the court will set out the steps that need to be taken before a final decision can be made. This typically includes each intended parent filing a witness statement setting out how they meet the S54 criteria above. In addition, a Parental Order Reporter will be assigned to the case.

What is a Parental Order Reporter?

A Parental Order Reporter is a qualified social worker who is a member of the Children and Family Court Advisory and Support Service (CAFCASS). They meet with the intended parents and their child and ensure that the surrogate freely consents to the application. This process usually takes between eight to twelve weeks. Following this, the social worker will submit an independent report to the court. It will set out whether they believe the parental order should be made.

Following the completion of the witness statements and receipt of the Parental Order Report, the intended parents will need to attend a court hearing. Provided the court is satisfied that the legal criteria has been met, the parental order will be granted. This will then enable the court to send the order to the General Register Office. The General Register Office will issue a new birth certificate for the child.

How Blanchards Law can help

Whilst this framework is designed to protect the child’s welfare, the process can often feel complex in practice. From understanding legal parentage at birth to navigating the parental order application, there are several stages where careful attention is required. It is therefore vital to obtain legal advice early on to ensure that the process is able to run smoothly. This will also ensure that legal parentage is obtained without delay. At Blanchards Law, we support intended parents at every stage. If you are considering engaging in surrogacy, contact a member of the team today to discuss your circumstances and receive guidance on your next steps.