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Surrogacy - what's the legal position in the UK?

For couples who discover that they are unable to have children, the news can be devastating. Same-sex couples may also face challenges when it comes to starting a family. For many of those facing this situation, surrogacy may be an option. But what is the legal position of surrogacy in the UK and what protection does it provide for the parties involved, including the surrogates?

According to UK law, the woman who gives birth to the child is regarded as the mother and technically has the right to keep the child, regardless of any agreements made between her and another couple. Parenthood is usually transferred from the surrogate mother by a parental order or the standard adoption procedure. Surrogacy contracts are not enforceable in UK law, even if you have signed a deal and have paid for her expenses.  

Fatherhood is granted to the surrogate’s husband or partner, unless permission was withheld by the surrogate’s partner, or the legal rights are transferred (usually through the standard adoption procedure).

Until the passing of new legislation in December 2018, a person had to be genetically related to the child (as either the sperm or egg donor), and be married, in a civil partnership, or living with a partner. The legislative change means that it is now possible for a single parent of a child born through surrogacy to have a Parental Order made by the Court, providing for that child to be treated as the legal child of that single parent. You will also need to be a permanent resident of the UK, and have the child living with you.

Applicants must complete a C51 form and will need to be processed by a family proceedings court within six months of the birth of the child. The process costs £200, and the child’s birth certificate is also required to complete the formalities.

If neither of the prospective parents are related to the child, you can apply for adoption, but be prepared for it to take much longer than a parental order.

Recently, a senior family law judge, James Munby, called for the question of payment to surrogate mothers to be addressed. Currently, the UK allows payments of between £12,000 and £20,000 and the family court now authorises payments to surrogates as a matter of course. In most cases to date, the transfer of parenthood once the child is born have been relatively problem-free and, as it stands, the surrogacy system generally works.

However, as flexible as this system may appear, there are problems caused by a lack of clarity in the law which can, in turn, lead to considerable distress and anxiety at what should be a happy time. Some parents worry that the child will be taken away from them if they cannot justify agreed payments versus expenses when the court application for parenthood is made following the birth.

For the surrogate mother, it is both morally right and practically desirable that she should receive a certain amount of financial payment to cover her expenses. However, this is not payment for carrying the baby but rather for the woman’s time and expenses, in exactly the same way that would be paid for providing a service.

However, turning the process into a purely financial transaction is undesirable. By the same token, it’s important that surrogacy should not become an ‘easy’ way to make money that might force or incentivise vulnerable women to become surrogates based solely on the financial gain involved.

If you’re contemplating either using a surrogate mother or becoming a surrogate yourself then it’s wise to seek legal advice before you start proceedings.