Surrogacy: who is the legal father?
Legal fatherhood in surrogacy cases is complex, and a great deal depends on whether the surrogate is married or unmarried at the time she conceives.
Surrogacy and fatherhood: married surrogates
The legal father of a child born to a married surrogate is usually the surrogate’s husband, giving the intended father no claim to legal parenthood, even if he is the biological father.
This is because the Human Fertilisation and Embryology Act 2008 section 35 (or the equivalent Human Fertilisation and Embryology Act 1990 section 28 for conceptions before 6 April 2009) provides that, where a married woman conceives through artificial insemination or IVF with sperm from someone other than her husband, her husband is the legal father of her child and any claim from the biological father is excluded.
Where the natural father is a sperm donor this works well; in surrogacy cases, it has the effect of excluding the parental status of the intended father. The fact that he is the child's natural father is irrelevant, just as it would be if he were a sperm donor.
The rule that gives fatherhood to the surrogate’s husband applies unless it can be shown that he did not consent to the conception. Various cases (including Re G (surrogacy: foreign domicile) 2007) have established that it is not sufficient for the husband to simply say that he did not consent if in fact he acquiesced to the arrangement.
Surrogacy and fatherhood: surrogates in civil partnerships
For surrogacy conceptions that take place after 6 April 2009, similar rules apply to confer parenthood on the same sex civil partner of a surrogate mother. If a surrogate mother is in a civil partnership with another woman at the time she conceives, her same sex partner will be the child’s second parent, again excluding the status of the intended father.
Surrogacy and fatherhood: unmarried surrogates
If the surrogate mother is not married (and not in a civil partnership) at the time she conceives, the intended father will usually be the legal father at birth. However, in certain situations it may be possible for the surrogate to nominate the intended mother as the second parent instead.
Surrogacy and fatherhood: gay couples
If the intended parents are a gay couple, the same rules apply. The biological father will usually be treated as the child's legal father only if the surrogate does not have a husband or civil partner who is the child's second parent.
The partner who is the non-biological father will not usually have any automatic recognition as a parent (although in certain situations it may be possible for him to be nominated as the father by the surrogate mother instead of the biological father, and he may be able to acquire status as a step-parent).
