Surrogacy for mum-dad couples
Surrogacy is a family building option for couples who cannot have a child by more conventional means. Some women know from an early age that they will not be able to carry a pregnancy; for many others, surrogacy follows a long journey of unsuccessful fertility treatment or recurrent miscarriages. From a legal perspective, surrogacy is very different from other forms of fertility treatment.
The law dictates the framework for arranging surrogacy in the UK and abroad, and so has an important impact on how things work in practice and the options available to you. UK law also governs who is treated as the legal parents of your child, the process that you need to go through after the birth to secure your family's position, and your child's nationality and immigration status.
Types of surrogacy
There are several ways in which you can use surrogacy:
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If you have embryos in storage or can use your own eggs, you can conceive through a gestational surrogacy arrangement in which your surrogate mother carries your biological child.
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You can use eggs from a third party donor, who might be a friend or relative, a donor provided by a UK clinic, or a foreign donor if treatment takes place outside the UK. Gestational surrogacy (in which the surrogate does not carry her own biological child) involves IVF treatment at a clinic in the UK or abroad.
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If you cannot provide viable eggs, you can conceive through a straight surrogacy arrangement, where your surrogate mother donates her egg to you as well as carrying your child. This can involve IVF treatment or artificial insemination at a clinic or at home.
Surrogacy in the UK
Surrogacy is legal in the UK and many parents successfully build their families in this way. Some couples conceive with the help of a friend or relative acting as their surrogate; others make contact with a surrogate mother through one of the UK's non-profit making surrogacy agencies (or sometimes independently).
However, surrogacy is carefully regulated by the law in the UK; commercially arranged surrogacy is outlawed and it is an offence to advertise that you are looking for a surrogate mother. Surrogacy arrangements are also unenforceable under UK law, although in practice they very rarely go wrong. It is also important to understand how to deal with the birth registration, and subsequently how to apply to become your child's legal parents. For more information about how surrogacy is regulated in the UK, see our page Surrogacy in the UK.
International surrogacy
Another option is to conceive through an international surrogacy arrangement, with common destinations including certain US states, the Ukraine and India. Although foreign surrogacy arrangements can be easier to arrange at the outset and have some advantages, you must manage the legal issues carefully, both in the UK and in your destination country.
English law does not automatically recognise your status as the parents (even if you are named on a foreign birth certificate or court order). You need to check what nationality status your child has at birth, and what you need to do to secure the right paperwork to come home across international borders. You also need to take steps to become the legal parents of your child for the purposes of UK law, as well as complying with the law in your destination country. The good news is that this is an increasingly well trodden, if not entirely straightforward, path.
If you are in a multinational relationship, are not British, or are British and living or working outside the UK, additional complications can arise. You need to ascertain your personal status, your eligibility to apply to the UK court, the impact on your child's nationality status, and how best to manage the legal issues in all the countries with which you are connected. Careful planning is sensible before you embark on your surrogacy journey.
Read our pages on international surrogacy law to find out more.
Legal parenthood and birth certificates
Your surrogate mother is your child's legal mother under English law, regardless of where in the world you conceive and regardless of what any foreign birth certificate says.
Who is treated as your child's father/second parent is complicated, and depends on the circumstances, including biology and your surrogate's relationship status. In some circumstances, the biological father might have no legal status under English law. It is also now legally possible for English law to treat an intended mother as the child's second legal parent from birth in certain circumstances.
For more information on how the law applies, see our page: Who are the parents of a surrogate born child? or contact us for legal advice.
Securing your family's legal position
Wherever in the world your child is born, the English law solution for surrogacy situations is a parental order. A parental order reassigns parenthood fully and permanently to you both, and extinguishes the legal status and responsibilities of your surrogate mother (and her husband or partner). It also leads to the reissue of your child's birth certificate (or the issue of a first British birth certificate if your child is born abroad) naming you both as the mother and father. Married couples have been able to apply for a parental order since 1994 and unmarried couples from 6 April 2010. For more information about parental orders, including the application process and the criteria, see our page: Parental orders and other options.
It is also important to consider the interim steps you can take to protect your family until your parental order is granted, including wills, life insurance and parental responsibility. For more information about wills, see our page: The importance of a well-drafted will.
How we can help
We are the UK's leading experts in UK and international surrogacy law. We have represented hundreds of families created through surrogacy in the UK and abroad, and acted successfully for the parents in leading High Court international surrogacy cases Re IJ (2011), Re L (which made front page headlines in December 2010) and Re X and Y (the first English case to ratify a foreign commercial surrogacy arrangement in 2008 which set the law for everyone else following after). We are the only solicitors in the UK who deal with both complex and straightforward surrogacy cases every day.
Find out more about our surrogacy law services.
