Surrogacy in the UK
Surrogacy is not illegal in the UK, but it is restricted by various legal rules which, generally speaking, only allow surrogacy arrangements that are informal and non-commercial.
UK surrogacy law: advertising offences
It is a criminal offence in the UK to advertise that:
- you are looking for a surrogate mother,
- you are willing to act as a surrogate mother, or
- you are a third party willing to facilitate the making of a surrogacy arrangement.
The law catches adverts online worldwide as well as in print, if they are placed by someone in the UK and can be viewed in the UK. They also catch the publishers of advert in the UK.
UK surrogacy law: commercial surrogacy offences
It is also a criminal offence to negotiate a surrogacy arrangement on a commercial basis, although the offence only applies to third parties and not those entering into the arrangement. In other words, it is not an offence to agree to make or receive a commercial payment if you are an intended parent or a surrogate mother (although doing so may jeopardise your ability to obtain a parental order) but it is an offence to profit by helping someone else to make a surrogacy arrangement.
The law has recently been updated to clarify that non-profit making organisations (such as COTS and Surrogacy UK) operate legally in helping surrogacy agreements to be made, even if they charge membership fees.
UK surrogacy law: surrogacy agreements are unenforceable
The law also says that surrogacy agreements are unenforceable. This means that it is not possible to enter into a legally-binding surrogacy agreement in the UK.
However, this does not necessarily mean that, if a surrogate mother changes her mind, the intended parents have no possible remedy. The legal position is complex and will be decided on a case by case basis but, in the case of In the Matter of N (a child) 2007, an intended father was allowed to apply for residence (though not full parenthood) of his son, and was ultimately awarded principal care against the wishes of the surrogate mother. The decision was an important one and shows that, although surrogacy contracts are not enforceable, the family courts will deal with disputes on a case by case basis and may be persuaded to uphold the rights of the intended parents where this is in the best interests of the child.
UK surrogacy law: regulated or unregulated?
Surrogacy in the UK is not subject to regulation (although if you conceive through IVF or other treatment at a licensed fertility clinic, your fertility treatment will be regulated by the Human Fertilisation and Embryology Authority). Surrogacy agencies in the UK (such as Surrogacy UK and COTS) are not currently licensed or regulated.
UK surrogacy law: How can we help?
Please contact us if you would like our further advice or assistance on the legal regulation of surrogacy in the UK. In particular, we assist individuals, fertility clinics, charities and not-for-profit surrogacy agencies with navigating the legal regulation of surrogacy in the UK.
