Understanding Surrogacy – From a Family Law Solicitor
Written by Liz Watson, Family Law solicitor at Streathers Solicitors, a boutique law firm based in North London.
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Embarking on the journey of parenthood is an exhilarating and deeply personal experience, yet for many, the path to parenthood is not always straightforward. In recent years, surrogacy has become an increasingly common way to conceive a child and has emerged as a beacon of hope for individuals and couples facing fertility challenges. Over the last decade, the number of people having a child via surrogacy has grown by almost four times. However, navigating the legal landscape of surrogacy can be daunting. If you are considering having a child via surrogacy, then understanding your rights and options is paramount, as it not only safeguards the interests of all parties involved but also ensures a smooth and fulfilling journey towards building a family. Join us as we delve into the intricacies of surrogacy and explore the significance of parental orders, shedding light on the diverse paths to parenthood available in modern society.
What is surrogacy?
Starting with the basics, it is important to know what exactly surrogacy is. Surrogacy is when a woman carries and births a child for another person or couple. This can either be by using the surrogate’s own eggs (referred to as ‘traditional surrogacy’) or where the surrogate has no genetic connection to the child (‘gestational surrogacy’).
Defining Legalities
The most vital piece of information for you to understand if you are considering surrogacy is who will be the child’s legal parents at birth. Interestingly, regardless of whether the surrogate’s own eggs are used or not, she will be the legal mother of the child at birth. If the surrogate is married or in a civil partnership at the time of the birth of the child, the surrogate’s partner will be the second legal parent. Otherwise, the child’s biological father will be the legal father at the time of the child’s birth.
As a means to extinguish the surrogate’s legal rights and transfer these to the intended parents, the intended parents will need to obtain a Parental Order from the Court. Once the Court makes a Parental Order, the child’s birth will be re-registered in the names of the intended parents.
Why do I need a Parental Order?
Without a Parental Order, the surrogate will remain the child’s legal mother, and in the case of her being married or in a civil partnership, her spouse will remain the child’s legal father. This may cause problems further down the line, such as:
- Issues relating to inheritance.
- Issues relating to foreign travel and in relation to obtaining a passport for the child.
- Difficulties relating to the child’s medical care.
- Difficulties relating to the child’s education.
In the absence of a Parental Order, the surrogate will need to be involved in all major decisions relating to the child.
An application for a Parental Order should be made within 6 months of a child’s birth. We have a set out an overview of the process here – Parental Order’s – How do I obtain one?
It is important, when choosing the surrogacy route to start your family, to understand all the potential pitfalls of the process. Unfortunately, the law in the UK relating to surrogacy is outdated. As it stands, the surrogate can change her mind about surrendering her parental rights to the intended parents at any point, up until the Court grants a Parental Order. Although this rarely happens in practice, it can naturally be a huge concern for the intended parents.
To help mitigate the risks set out above, it is recommended for all parties concerned to enter into a Surrogacy Agreement. Although, it should be noted that Surrogacy Agreements are not currently binding in the UK, meaning that even if such an agreement is entered into, the surrogate mother could still change her mind. However, in practice, it can be helpful to have a Surrogacy Agreement drawn up as it focuses all the parties’ minds as to the outcome and it can be useful to set out the common intentions of the parties both during the pregnancy and beyond.
How can I enter into a Surrogacy Agreement?
It is a criminal offence for third parties to negotiate the terms of a Surrogacy Agreement and so a solicitor cannot assist you with the drafting or reviewing of a Surrogacy Agreement. However, there are several not-for-profit organisations that can help you with this, thereby minimising the risks of your surrogate changing her mind. The four main not-for-profit surrogacy organisations are as follows:
- Surrogacy UK (SUK)
- Brilliant Beginnings (BB)
- Childlessness Overcome Through Surrogacy (COTS)
- My Surrogacy Journey
What is in a Surrogacy Agreement?
Surrogacy Agreements, most commonly, set out the following:
- Conception arrangements.
- Arrangements and medical treatment during the pregnancy.
- Birth arrangements.
- The intention that a Parental Order will be sought by the intended parents, and the surrogate’s agreement to this.
- The surrogate’s contact with the baby following birth and in the longer term.
The law in relation to surrogacy is complex, and navigating this area can be extremely overwhelming. It is recommended that if you are considering having a child through surrogacy that you seek specialist legal advice at your earliest opportunity.