How to have a positive and legal surrogacy journey

Surrogacy is an increasingly popular option for couples and individuals who are unable to conceive a child of their own because of fertility issues, or because they are in a same-sex relationship.

There are two different types of surrogacy arrangement:

1. Traditional/straight surrogacy: Where the surrogate will be the child’s biological parent. The surrogate’s own egg will be used with the sperm of the intended father.
2. Gestational surrogacy: Where the surrogate has no genetic link to the child. The egg and sperm could be from the Intended Parents, or the child might be conceived with an egg or sperm from a donor.

It is important to know that in England and Wales, the surrogate is always regarded as the child’s legal parent at the time of the child’s birth under both types of surrogacy arrangements.

The law further states that the baby’s father or “second parent” is the spouse of the surrogate.  If the surrogate is not married or in a civil partnership the situation is much more complicated, and the baby may have no ‘legal’ father. Only after a surrogate mother has given birth can the intended parents make an application to the family court to become legal parents of the baby.

Another key issue to bear in mind is that only altruistic surrogacy is legal in this country, meaning that that you are only allowed to pay a surrogate reasonable expense and nothing more.

The 11 key stages of the surrogacy journey

To help you plan a smooth surrogacy journey, Natalie Lester, partner in our family and divorce team, gives some tips on how to ensure that the process is as positive as possible.

1) You decide whether or not to proceed with surrogacy

Your first step is to decide if surrogacy is right for you.

2) You choose a surrogate, and egg or sperm donor if necessary

When choosing a surrogate, look for someone you trust and feel comfortable with. All those involved should seek counselling and legal advice. If you are using a fertility clinic in the UK, it is a pre-requisite that both the surrogate and their partner, if they have one, seek their own legal advice, as well as the intended parents.

As well as legal advice on the surrogacy arrangement you will also need to have a specialist will in place to cover all eventualities.

3) You draw up a surrogacy agreement

In order to help manage a smooth surrogacy and handover, the intended parents and surrogate mother usually draw up and agree a surrogacy agreement, ideally prior to the fertility journey commencing.

The surrogacy agreement dictates when the baby will be handed over as well as how the pregnancy is to be managed. It is vital to understand that a surrogacy agreement is not legally enforceable or binding, but they can be helpful in terms of clarifying expectations.

4) You create embryos

The next step is to create embryos to implant in your surrogate.

5) Conception takes place

When your embryos are ready, they will be implanted in your surrogate at the fertility clinic.

6) Your child is born

If the pregnancy is successful, your child will be born.

7) Your baby’s birth is registered

Once your baby is born, their birth will be registered by the surrogate. This is because the law stipulates that the woman who gave birth to the child is recognised as their mother.

8) You apply for a parental order

When a child is born through surrogacy, the intended parents will need to apply to the family court for a parental order. This transfers legal parenthood from the surrogate (and her spouse or civil partner, if she has one) to the intended parents.

This can only happen with the surrogate’s consent. It involves the family court and a court-appointed social worker. Parental order applications are typically heard by magistrates. If the child is born overseas or there are questions over whether the parental order criteria are met, then the application will be heard by a High Court judge.

9) The court sets the timetable for parental order proceedings

The court is responsible for setting the timetable for parental order proceedings. If there are complications when making a parental order, the judge needs to be satisfied not only that making the order will be in the child’s best interests but that several specific criteria have been met.

For example, the intended parents (or at least one of them) must be genetically related to the child and if there are two intended parents they must be married or in a civil partnership or in an enduring family relationship together. In some cases, there may be more than one directions hearing, the final hearing is where the decision regarding the parental order is made.

It is worth bearing in mind that the vast majority of surrogacy cases in England and Wales are straightforward and it is rare that a parental order to transfer parenthood to the intended parents is not considered in the best interests of the child.

10) You obtain a new birth certificate

At this point you will need to obtain a new birth certificate for your baby from the General Register Office. This will show your details, and note that you are the parent(s) of your child.

11) Tell your child – when they are ready

And finally, you will need to support your child to understand the circumstance of their birth when the time feels right

Many people choose to go abroad to look for a surrogate

For various reasons including a shortage of surrogacies in this country, couples and individuals often go abroad to seek a surrogate.

International surrogacy can be complicated and often it throws up difficult questions on parenthood, nationality, immigration and even legality because surrogacy is not legal in every country or jurisdiction.

Where surrogacy is legal, you may be able to have your name put on the child’s birth certificate, but this does not make you the child’s legal parent in English law. Nor will the child automatically become a British citizen.

You will need specialist legal advice on bringing your child to the UK, including obtaining a Parental Order once the child is living with you in the UK.

A new surrogacy pathway will make surrogacy easier

In March 2023, the Law Commission announced proposed changes to the law of surrogacy. Under the reforms, a new system governing surrogacy agreements, “the new pathway”, would come into force which would offer more clarity, safeguards and support for the child, surrogate and intended parents.

For example, it is proposed that in many cases, the intended parents would be the legal parents of the child from the moment of birth. The proposals also include an easier immigration pathway to return to the UK with the child.

Our current surrogacy laws were drawn up in the 1980s, at a time when non-traditional families were rare. While other parts of fertility laws have been updated, the laws around surrogacy remain unchanged.

It is time that the law caught up with the practicalities of modern surrogacy arrangements and provided intended parents and surrogates with more certainty and support but for now the current regime remains in place.

For more information on surrogacy contact Natalie Lester at nl@debenhamsottaway.co.uk or on 01727 735612.

This article was originally published on talentedladiesclub.com