If you are considering creating your family with a UK surrogacy arrangement, our team of specialist advisers here at Buckles are ready to support you every step of the surrogacy process, whether you are the intended parents or the surrogate.
If you are the intended parents, our experienced team will provide the legal advice you need on all aspects of surrogacy, from parental orders to specialist Wills, to ensure you and your partner (if you have one), are successfully transferred legal parenthood from your surrogate.
Surrogacy has become a definitive step in overcoming female infertility, allowing women who can’t naturally conceive or carry a baby, as well as same-sex couples, to have children of their own. But these arrangements are complex, so it’s important to seek legal guidance when embarking on such life changing events.
No matter the stage in your surrogacy journey, whether you’re searching for the right surrogate, your surrogate is already pregnant, your surrogate has given birth, or you are the surrogate, we will break down the legal issues one step at a time in a language you understand.
Surrogacy and Parental Orders
Currently, under UK law, the surrogate, who gives birth, is the legal mother of the child and must register the child within six weeks of the birth. She will be stated as the legal parent on the birth certificate.
The question of who else is a legal parent, is less simple to answer. If she is married her husband will be the legal father and if she is in a same-sex marriage or civil partnership, her wife or civil partner will be the other legal parent.
However, if she is unmarried, the intended father is often the legal father, assuming he donated sperm to conceive the child. If conception required a UK fertility clinic, someone else can be nominated as the second legal parent, such as the intended mother or father.
The baby can be given the intended parents’ surname regardless of who are registered as the parents.
Surrogacy contracts are unenforceable, and you can’t pay for a surrogate in the UK. You can pay costs, but it’s considered illegal to pay a surrogate more than reasonable expenses for the surrogacy arrangement. Anything beyond this is perceived as commercial surrogacy, which is against the law.
The current legal solution for resolving the question of parenthood in surrogacy cases is a parental order, which makes the intended parent(s) the child’s legal parent(s). The intended parents must wait six weeks from birth to apply to the court for the order, which will be assessed by a judge.
When considering the application, the judge must not only believe the order supports the child’s welfare, but must be satisfied the rules have been followed, such that:
- At least one of the intended parents is genetically related to the child.
- The child was carried by a surrogate as a result of assisted reproduction techniques.
- The intended parent(s) is over the age of 18.
- The child will live with the intended parent(s), at least one of whom is domiciled in the UK.
- The application has been made within six months of the child’s birth.
- The surrogate has consented to a parental order being made.
- Any payments, other than for reasonable expenses, have been approved by the court.
Should the parental order application be granted, the child’s birth will be re-registered to record the intended parents as the legal parents, which ensures they have parental responsibility, whilst eliminating the surrogate’s parenthood.
If the intended parents do not obtain a parental order in the UK, they will not be recognised as the child’s legal parents, which can prove distressing and costly to correct at a later date.
The experienced team here at Buckles can help intended parents and surrogates through the process of applying for a parental order, to ensure the intended parents become the legally recognised parents of the child, with our renowned sensitive and efficient approach.
About Buckles
Buckles Solicitors is a full-service international legal firm providing services and legal representation for both businesses and individuals. With offices all over the UK, France and Spain, our legal advisors offer a wide range of expertise, from surrogacy and commercial property to tax planning and international law.
Our surrogacy solicitors take the sympathetic approach when helping both the surrogate and intended parents through the surrogacy process. Whatever your role in the arrangement, our team’s expert advice and sensitivity to subject allows us to collaboratively meet your needs in a space that is safe.
Buckles family team has been ranked tier 2 by Legal 500.
Frequently Asked Questions
What are the two types of surrogacies?
Surrogacy is a way for aspiring parents, who have difficulty conceiving or carrying a baby, to build and extend their families. But like all elements of parenthood, surrogacy arrangements are specific to the needs of the surrogate and intended parents. To help accommodate for a range of circumstances, there are two types of surrogacy:
- Straight or traditional surrogacy – the surrogate provides her own eggs to achieve the pregnancy and is biologically related to the child.
- Host or gestational surrogacy – the surrogate doesn’t provide her own eggs to achieve the pregnancy and is not biologically related to the child. In which case, the eggs of the intended mother or an egg donor are used.
It is, and always has been, legal to enter either type of surrogacy arrangement in the UK. Although, English law prohibits any form of commercial surrogacy from taking place, meaning it’s illegal to offer compensation that has not been authorised by the family court to the surrogate for her services.
Can a surrogate mother keep the baby?
In England and Wales, the law states that whoever gives birth to the child is the legal mother, even if she is a surrogate. If married, her spouse/civil partner is the child’s second legal parent. It’s at this point, up until a parental order is granted, that the surrogate can change her mind and refuse to give up the baby.
It’s a risk many prospective parents fear will ruin their chances of becoming parents, but equally, many surrogates worry the intended parents may not claim responsibility of the child after the birth. Although not impossible, cases like this are rare, and shouldn’t discourage you from building a family this way.
Surrogacy agreements are not legally binding. In other words, the intended parent/s will need to make a post-birth application to the family court (with consent from all parties) to transfer parenthood to them. Our experienced team of surrogacy solicitors can help you gain recognition as legal parents, in line with the child’s best interests.
What is a parental order?
A parental order is the dominant UK legal solution for resolving parenthood in surrogacy. This is a post-birth court order, whereby the intended parents are transferred legal parenthood from the surrogate (and their spouse/civil partner).
Once a parental order is made, a UK birth certificate will be issued declaring the intended parents as the legal parents. The updated birth certificate replaces the original birth certificate which will then be sealed from public record.
If, for what reason, the order cannot be processed, the surrogate will remain the child’s legal mother throughout the child’s life. It will be the court’s job to find an alternative to decide how the child should be looked after, and who should take responsibility of his or her upbringing.
Is it illegal to pay for surrogacy in the UK?
It is a criminal offence to pay someone for surrogacy in the UK. However, the intended parents are responsible for reimbursing any expenses the surrogate incurs – within reason.
The Surrogacy Arrangements Act 1985 outlines that only not-for-profit bodies are permitted to receive payment for lawfully carrying out surrogacy. This prohibits any organisation or external person, minus the surrogate and the intended parents, from undertaking any commercial activities that could be deemed disingenuous towards surrogacy.
There is no fixed practice or amount of money that defines reasonable costs. The family court simply decide the surrogate’s reasonable provisions for each case, keeping the mother and child’s wellbeing at the heart of all decision-making. Any final judgements must be authorised by the court before a parental order can be made.
An estimation provided by Surrogacy UK states that surrogates typically receive anywhere between £10,000-£15,000, although expenses do vary depending on the circumstances. For example, a surrogate carrying twins would be entitled to extra expenses because there is more than one child.
What is the average cost of surrogacy in the UK?
The surrogate’s chosen clinic, and personal situation, will determine the expenditure of their surrogacy journey. We understand the process can be both complicated and costly, which is why it’s important to seek legal advice in doing so.
With the average UK surrogacy arrangement falling between £20,000 to £80,000+, our surrogacy solicitors can help set a budget that is harmonious to your needs and plan for all possible contingencies.
Remember it is still illegal to pay for surrogacy in the UK, but you can pay costs. These costs don’t just cover payment to the surrogate, they also include:
- Eventualities – failed embryo transfers could mean more need to be created, travel and accommodation expenses and unforeseen life events.
- Surrogate compensation – the surrogate mother should not be lacking money or material possessions at the discretion of the intended parents. English law prohibits any payment to the surrogate during or after the agreement, but the intended parents will be expected to cover all reasonable costs the surrogate is entitled to.
- Surrogate expenses – any attainable expenses that the surrogate could claim as connected to her pregnancy. Examples are as follows: travel costs (to/from the clinic or hospital and visiting intended parents), loss of earnings must be replaced if she has a job, maternity clothing, childcare if they have children of their own, physiotherapy or psychotherapy if they are related to the pregnancy. Other minor reimbursements requested by previous UK surrogates, such as holidays, insurance, groceries, and gym memberships are usually classed as reasonable costs if it is linked to the pregnancy.
- Clinic fees – these vary from clinic to clinic, with many UK fertility clinics offering fixed cost packages (starting from £10,000) for creating embryos. This would include egg and sperm donation (if help from a donor is required), fertilisation, one embryo transfer and the surrogates medical screening. Other clinics tailor their pricing to the surrogate’s exact needs, but it’s usually not too dissimilar to the package total. Should you need to create more embryos or find another surrogate then you will be expected to pay the clinic fees again. Additional testing also comes at a cost.
- Legal fees – again, these differ in price range depending on the chosen lawyer. Most rational legal fees are no more than £12,000, but costs can be much higher in some locations. To apply for a parental or adoption order, you will be charged with a court fee of £232. A date of discussion to become the child’s legal parent will then be set, providing you meet the criteria.
