Surrogacy for UK hospitals and social workers
We are often asked by UK healthcare and social work professionals what their legal obligations are when dealing with surrogacy arrangements. This page has guidance for:
The HFEA Code of Practice requires you to give information to patients about who will have parental responsibility for any child conceived. In surrogacy cases, who the parents are depends on whether the surrogate is married (find out more). You must use the HFEA forms appropriately:
- If the surrogate is unmarried, use forms WP and PP to nominate the intended father (or the intended mother) as the child's other parent.
- If the surrogate is married, use form WC (declaring the surrogate's husband's lack of consent) only if he genuinely does not consent. It cannot be used to abdicate his responsibilities simply because this is what the parties want, and doing so can seriously complicate the post-birth court application.
After the birth, the intended parents must go through a legal process to become the legal parents and to extinguish the surrogate's legal responsibilities. This is called a parental order, and it involves a court application made within six months of the birth. It is important that intended parents know what the legal process involves and that they check that they are eligible to apply (find out more). Some clinics require intended parents to have legal advice at the outset, but this is not a formal pre-requisite for treatment.
The intended parents and the surrogate should make wills during the pregnancy to ensure that everyone (particularly the child) is provided for appropriately if anyone dies unexpectedly (find out more). Many intended parents also take out life insurance to protect the surrogate's family in case she dies as a result of pregnancy or childbirth.
It is not possible to enter into a legally-binding surrogacy contract under UK law. Although some parents enter into a contract (particularly if they are working with non-profit making agencies such as Surrogacy UK and COTS), this is not a legal requirement nor a pre-requisite to fertility treatment (find out more).
Surrogacy arrangements are increasingly common in the UK. Following recent changes to the law, it is not necessary for a maternity hospital to make a referral to social services when a child is born through surrogacy (see the information for social workers below).
Surrogacy arrangements require sensitive handling to ensure that everyone's rights are protected. As a maternity hospital or midwife dealing with a surrogate pregnancy you should consider:
- How to ensure that all those involved (the surrogate, her partner and the intended parents) can attend scans and antenatal appointments
- How to ensure that the surrogate is adequately supported by her birth partner during labour, and that the intended parents can also attend the birth of their child
- Whether, after the birth, the hospital is prepared to discharge the baby and surrogate mother independently of each other
- Whether the hospital will provide sensitively-managed facilities, giving the surrogate space and enabling the intended parents to assume care of their child immediately from birth
- How the parties plan to deal with breastfeeding arrangements (the surrogate might be expressing milk, and the intended mother might want to establish breastfeeding).
Social services do not routinely need to be involved in surrogacy arrangements. The handover of a child to parents who 'propose to' apply for a parental order is explicitly not a private foster arrangement under the Children Act 1989 (see The Human Fertilisation and Embryology (Parental Orders) Regulations 2010 Schedule 4, paragraph 12). This is because the parental order application process involves a thorough investigation of the child's welfare by the family court and CAFCASS, making social services involvement unnecessary.
The exemption applies immediately from birth and not just from the time the parental order application is submitted, as long as the parents 'propose to' apply for a parental order within six months of the birth. In addition, the Human Fertilisation and Embryology Act 2008 provides that the child must be in the care of the intended parents before they can apply for a parental order, so handover is expected to take place at birth. The 2010 regulations also provide explicitly that a child cannot be removed from the care of intended parents without a court order once a parental order application has been lodged with the court.
The private foster regulations under the Children Act 1989 apply if the parents are not eligible to apply for a parental order (find out more) or if the parents have not applied to court within six months of the birth.
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