For many couples facing infertility or other challenges in starting a family, surrogacy offers a pathway to the family life they seek. There are two types of surrogacy: –
- Total/Gestational Surrogacy: the eggs of the intended mother, or an egg donor, are used. The surrogate mother therefore has no genetic relation to the child.
- Partial Surrogacy: where the surrogate mother’s own eggs are used, creating a genetic link between the surrogate and the child;
The legal landscape of surrogacy laws in the UK can be complex. Many couples in the UK who have children via surrogacy are not aware of the legal steps that must be taken to ensure that they are recognised as the legal parents of their child.
A surrogacy arrangement alone is not legally binding so far as the ‘parenthood’ of the child is concerned. It is unknown to many that where a child is born via a surrogate, the legal parenthood of the child is vested in the surrogate mother (and her spouse or civil partner, if applicable). This is even the case if the surrogate has no genetic link to the child.
In order for the surrogate (and her spouse)’s legal parenthood to be rescinded and instead vested in the intended parents, they must apply for a Parental Order within six months of the child’s birth. The application criterion requires that: –
- The child has been carried by the surrogate as a result of a surrogacy arrangement;
- At least one of the intended parents are genetically related to the child;
- The intended parents are married, in a civil partnership, or are living as partners.
Surrogacy abroad
Whilst surrogacy is legal in the UK, it is subject to strict regulation which prohibits ‘commercial surrogacy’ whereby the surrogate mother receives payment beyond reasonable expenses for their role. Instead, an altruistic approach is adopted. This is a contributory factor as to why there is a shortage of surrogate mothers in the UK, and thus, why many couples seeking to use a surrogate decide to do so overseas.
International surrogacy increases the complexity of the surrogacy arrangement. Foreign surrogacy is not automatically recognised in the UK, and so intended parents must ensure that the correct legal procedures are followed to ensure their child has the required legal status to remain in the UK.
I don’t have a Parental Order, what does this mean?
There are significant legal implications for both the child and the intended parents if a Parental Order is not obtained. Without having legal recognition of being the child’s parents, the couple may face difficulty when making significant decisions regarding the child’s upbringing; such as education, inheritance, healthcare and child arrangements (should the couple seek a Child Arrangements Order upon separation).
If you have not applied for a Parental Order within six months of your child’s birth, the court may grant permission to extend the application deadline where exceptional circumstances have prevented an application being made within the required timeframe; such as medical complications or unforeseen delay.
How we can help
At Nalders, we have a team of experienced family lawyers who can support you at any stage of your surrogacy journey to assist with the legal procedures required to ensure that the intended parents of a child are recognised as the child’s legal parents.
If you wish to discuss this further, please contact Amy Taylor-Deacon in the family law team on 01872 241414 or email ataylor@nalders.co.uk for further information.
Nalders Solicitors has offices across Cornwall.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.