The Law Commission’s 2023 report ‘Building Families Through Surrogacy: A New Law’ recommends reforming the current law behind surrogacy in the UK.
If enacted, the intended parents would become parents of the child from birth. This is a radical departure from the current law, where the surrogate is currently the legal mother of the child, regardless of whether or not she has a genetic connection. Other recommended reforms include the introduction of a new surrogacy register.
Whether these reforms are enacted into law depends on the government’s response to the report.
What is surrogacy?
Surrogacy is a practice where a woman (‘the surrogate’) carries and gives birth to a child for another person or couple (‘the intended parent(s)’). Surrogacy can be traditional or gestational. Traditional surrogacy involves the egg of the surrogate being used, so that the child is genetically related to the surrogate. With gestational surrogacy, the egg of the intended mother or a donor are used, so there is no genetic connection between the child and the surrogate. Surrogacy has become increasingly common; the number of children born from surrogacy has increased almost fourfold over the last decade.
Current Surrogacy Law
In the UK, surrogacy is governed by the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008. In law, the legal mother of the child at birth will be the surrogate, while the legal father or second parent will be the surrogate’s spouse or civil partner( if she has one). If the surrogate is not married or does not have a civil partner it is possible to register one of the intended parents as the father of the child.
As a result, at the time of birth, a child born through surrogacy, may not be legally related to either of the intended parents.
In order to transfer legal parental status to the intended parents and extinguish the parental rights of the surrogate, a parental order must be made. This cannot be made until at least six weeks after the child’s birth, as up until that point, the law does not deem the surrogate’s consent to be valid. In practice, intended parents are likely to have to wait up to six months to a year after the child’s birth before a parental order is made. This is in no small part due to an protracted, and sometimes expensive, legal process.
Unlike in the US, commercial surrogacy is prohibited in the UK. Commercial surrogacy involves the surrogate mother being compensated for her services beyond reimbursement of expenses. This means, in essence, that in the UK a surrogate mother can’t be paid anything more than her ‘reasonable’ expenses. Although expenses can be construed broadly to include loss of earnings, pregnancy support and medical expenses.
The Law Commission’s Reform Recommendations
On the 29th March 2023, the Law Commission introduced a report with some recommendations, which if enacted, will change the way that surrogacy operates in the UK.
In their report, the Law Commission recommends introducing a ‘new pathway to legal parenthood’, under which the intended parents would become parents of the child from birth. This would be subject to the surrogate having the right to withdraw consent. This would remove the need for a parental order to be made in the majority of cases, but where an order still has to be made, the Law Commission recommends reforming parental orders to allow the court to make one where the surrogate does not consent, provided the child’s welfare requires this.
Notable is the fact that commercial surrogacy remains prohibited under the new recommendations. According to the Law Commission, this ensures that “surrogacy continues to operate on an altruistic rather than a commercial basis.”
The Law Commission also recommend the creation of a new Surrogacy Register. If created, this would give children born through surrogacy the ability to trace their origins when they are older.
What Happens Next?
It is now up to the government to consider and respond to the Law Commission’s recommendations, and decide whether they would like to introduce the changes into Parliament to become law. An interim response should be available within 6 months, which will likely give an indication as to the likely outcome.
If you would like to know more about surrogacy law or require legal advice on any stage of the surrogacy process, please get in touch with us at Allard Bailey Family Law.
To book a consultation or telephone appointment with one of our team, please call 020 7993 2936 or complete the Contact Form and we will get in touch with you.
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If you would like to speak to a family solicitor about adoption, child arrangements, dissolution, divorce, domestic abuse, financial settlements, nuptial agreements, separation, surrogacy or any other area of family law, please call 020 7993 2936 to book a consultation or complete a Contact Request. Alternatively, you can start your matter online using our Free Family Law Portal.//get_template_part( 'template-parts/post/content', get_post_format() );
The discussions surrounding the agreement will help you to identify and address potential issues before they occur. It is also useful to have a record of everyone’s intentions should there be a dispute or disagreement down the line.
Another thing to remember is that it is very common for fertility clinics to refuse medical treatment unless there is an agreement in place. Because it protects all parties during the medical procedures, especially the surrogate, many clinics will not begin treatment until they have seen evidence of your Surrogacy Agreement.
There are many variables that should be considered and addressed as part of the surrogacy agreement, which will usually be both lengthy and detailed. The aim of the contract should be to clearly outline each party’s role, rights and responsibilities before, during and after the birth takes place. We have generated a list of provisions that could be included (this is not an indefinite list):
- The role and intent of the parties involved
- Details of any medical treatments and the location/name of the clinic they will be performed at, for example, where insemination will take place
- Finances for the surrogate - including all disbursements. This usually involves compensation for the discomfort, pain, suffering and inconveniences related to the pregnancy itself, as well as necessary living expenses including all the surrogate’s foreseen and unforeseeable costs such as pregnancy clothing. These amounts should be specified and so should detail about when they will be paid and by whom
However, in the UK the surrogate can only be provided with reasonable expenses, which covers things like loss of earnings, pregnancy clothing, travel expenses to medical appointments, medication and so on.
- The surrogate’s health and responsibilities to take care of herself and the baby throughout her pregnancy, such as the promise not to smoke, drink excessive amounts of caffeine, take illegal drugs or drink alcohol
- The surrogate's duty not to participate in high-risk activities such as skiing, horse riding or going on rollercoasters
- If she has one, the surrogate's partners responsibilities may also be included, such as not to smoke around her during the pregnancy
- Who will be present at prenatal appointments and who should be contacted if there are any issues with the pregnancy and how
- Sensitive issues such as details that may trigger selective termination
- The birthing plan including who will be present, how and where the birth will take place (with the understanding that births do not always go to plan)
- Communication between all the parties, for example, whether all parties are required to keep in contact and how, including the time limit for responding
- What will happen after the birth takes place including who has custody of the child.
As it is against the law for a third party (including a solicitor) to negotiate a surrogacy contract for payment in UK we are unable to draft or review the terms of a Surrogacy Agreement.
Do we need one?
We would always recommend that you prepare a formal Pre-conception Agreement as the process itself will help you to reflect on your hopes and expectations, whilst encouraging you to address the more delicate issues that are otherwise easy to avoid.
If you set everything out in writing it will be easy to refer to in the future, which can help you to avoid disputes. Whereas people’s understanding or interpretation of verbal agreements may be different and can often change over time, which can lead to disputes.
Another advantage of a Pre-Conception Agreement is that you will all be equal at the time of drafting, which is more likely to result in an arrangement that is a fair reflection of everyone’s wishes.
What should it cover?
There are no set rules for what an agreement should contain, but it should reflect your vision of how the arrangement will work.
Topics that you may want to address include:
- your practical plans for conception
- the birth including who will be present
- who will have parental responsibility?
- how will you agree on a name? What surname will the child have?
- parenting roles such as who the child will live with and spend time with
- who will have financial responsibility?
- what will happen if parents separate or enter new relationships?
- who will be appointed as guardians?
Who should be included in the agreement?
To ensure all emotional as well as practical concerns about how the arrangement will work can be addressed, it is advisable for the biological parents as well as their respective partners (if appropriate) to be involved in preparing the agreement.
Are they legally binding?
Pre-conception Agreements are not legally binding, which means that if there is a dispute the Court is not bound to enforce them, but they will be considered as evidence. They also provide a starting point for discussions, mediation or negotiation through solicitors, which may enable you to resolve any disputes without involving the Court.
If you are planning to start a family with a donor or become a co-parent and would like legal advice, please contact Louise Allard or Sabrina Bailey on 020 7993 2936.
What is surrogacy?
Surrogacy is an arrangement in which a woman agrees to become pregnant and give birth to a child for another person who will become the legal parent of the child.
Surrogacy arrangements are an increasingly popular way for people to grow their family in the UK. The woman who carries the child is called the “surrogate” and the person or people who will become the child’s legal parents are called the “commissioning” or “intended” parents.
There are two main types of surrogacy arrangements in the UK:
- “Straight” or “Traditional Surrogacy” when the surrogate’s own eggs are used with the sperm of the commissioning father.
- “Host” or “Gestational Surrogacy” when both eggs and sperm are used from the commissioning parents, or from other individuals, and the surrogate is unrelated to the child.
Is surrogacy legal in the UK?
Surrogacy is legal in the UK, but it cannot be commercialised or advertised. The act of surrogacy is considered a gift and it is therefore not legal to enter into a surrogacy arrangement where there is commercial gain. You are not able to advertise for a surrogate and surrogates are not allowed to advertise themselves. Any arrangements that you reach with the surrogate are not legally binding so you must transfer parental responsibility (the legal right and authority to care for and make life decisions for a child) through the Court.
What will my rights be when the child is born?
When the child is born the surrogate will automatically become the legal parent with parental responsibility, regardless of whether the child was conceived using traditional or gestational surrogacy. The commissioning father (who is also the biological father) can be recorded on the birth certificate and gain immediate parental responsibility if the surrogate is unmarried, but if she is married her husband is automatically the legal father.
As a child in UK cannot have more than two legal parents, parentage must always be transferred by the Court, most usually by a Parental Order. The application for the Parental Order must be made within six months of the child’s birth and must satisfy a number of factors. The surrogate (and her husband) must fully and freely give consent, but can do so no sooner than six weeks after the birth. Once the Parental Order is granted, the child’s birth will be re-registered and a new birth certificate will be issued so the child is treated as if born to the applicants.
There is a period of time before the Parental Order is granted when you are likely to have the child living with you, but without legal parental responsibility, so it is important to apply for your Parental Order well within the time-frame.
What if my child is born abroad?
It is common for people living in UK to use a surrogate based overseas, particularly from countries such as USA and Canada where commercial surrogacy is legal. If you do so, you may need to gain parental responsibility in both the country of birth and in UK, so it is advisable to seek legal advice in both jurisdictions before any attempt to conceive.
As UK law stands, unless you obtain a Parental Order in UK, the surrogate and her husband (if relevant) will still be recognised as your child’s parents in UK, regardless of your status in the birth country.
Is it necessary to have a Surrogacy Agreement?
A Surrogacy Agreement sets out the expectations and intentions of the parties throughout the surrogacy and after the birth. Although they are not legally binding in UK, they are recognised in many jurisdictions and it is helpful to have one so you are clear on what will happen before the Parental Order is granted. The discussions surrounding the agreement will help you to identify and address potential issues before they occur. It is also useful to have a record of everyone’s intentions should there be a dispute or disagreement down the line.
You can make a Surrogacy Agreement at any stage in your journey, but it is advisable to prepare one at the outset. Agreements made before an attempt to conceive are sometimes referred to as Pre-conception Agreements, although Pre-Conception Agreements are more commonly used for shared parenting arrangements.
You should be aware that is against the law for a third party (including a solicitor) to negotiate a surrogacy contract for payment in UK, but there are non-profit organisations that are permitted to offer you advice. Click here for more detailed information on Surrogacy Agreements.
What is surrogacy?
Surrogacy is an arrangement in which a woman becomes pregnant and gives birth to a child for another person, or couple, who will become the legal parent(s) of the child. There are two main types of surrogacy available to gay couples in UK:
- “Traditional Surrogacy”when the surrogate’s own eggs are used with the sperm of one of the commissioning / intended Dads.
- “Gestational Surrogacy”when donor eggs are used and the surrogate is unrelated to the child.
Surrogacy is becoming popular amongst gay couples as it enables one father to be biologically related to the child.
Will we be our child’s legal parents?
In UK, it is only possible for one of you to be recognised as a legal parent on birth. This is because a child can only have two legal parents at one time and the birth mother will initially be recognised as one of those parents, even if she is acting as a surrogate with donor eggs.
If you are biologically related to the child your name can be put on the birth certificate as the child’s other parent, assuming your surrogate is not married or in a civil partnership. If your surrogate has a legally recognised spouse, that spouse will initially be child’s other legal parent, even if they do not have a genetic link to the child. In this situation the biological father will need to apply for a Parental Order to extinguish the legal status of the spouse and transfer it to himself.
Where does this leave the intended father without a biological connection?
The child’s other intended father will usually make an application for a Parental Order in conjunction with the biological father. This will extinguish the status of the surrogate birth mother leaving the intended fathers as the two people with parental responsibility. The application must be made within 6 months of the child being born but cannot be made less than 6 weeks after the birth. If a Parental Order is granted, then parental responsibility will be transferred to the intended parents and a new birth certificate can be issued with both father’s names on it. It is advisable to make the application as soon as possible as your child, who would usually be in your custody from birth, will be in a legal limbo until you have parental responsibility.
What is Parental Responsibility?
Parental Responsibility is legally defined as “all the rights, duties, powers, responsibilities and authorities which by law a parent of a child has in relation to the child and the child’s property.” It includes the responsibility of providing for and protecting the child.
Only people with Parental Responsibility can legally make important decisions in their child’s life, such as which school the child attends and authorising medical treatment.
Do we both need to have Parental Responsibility?
Although it might not seem like a big issue as you can still make joint decisions, it is advisable for both of the child’s intended parents to gain parental responsibility or you may encounter day-to-day issues. For example, if the father without parental responsibility needs to take the child to hospital on his own, he will not be able to authorise emergency treatment.
If something happens to the father with parental responsibility and the parental responsibility of the surrogate mother has not been extinguished, she will be legally responsible for the child. This can leave the child vulnerable at a time when they most need certainty in their life.
If you do not have valid Wills, there can also be issues with inheritance as your parental role will not be recognised by the Courts and the surrogate mother could become a Trustee of the child’s inheritance by default. Our blog on The Importance of Wills in Safeguarding Your Child’s Future explains more.
What if our child is born abroad?
Due to restrictive regulations, including the prevention of advertising and commercial gain in surrogacy in UK, it is common to use a surrogate based overseas. Popular countries include USA and Canada where commercial surrogacy is legal and parental responsibility can be transferred at birth. In this situation you may need to gain parental responsibility in both the country of birth and in UK, so it is advisable to seek legal advice in both jurisdictions before any attempt to conceive.
As UK law stands, unless you obtain a Parental Order in UK, the surrogate and her legal partner (if relevant) will still be recognised as your child’s parents in UK, regardless of your status in the birth country.
If you would like legal advice on any stage of the surrogacy process including gaining parental responsibility for your child or surrogacy disputes, you can contact Louise Allard or Sabrina Bailey on 020 7993 2936 or make an enquiry through our online system.
It is important to note that the normal criteria for applying for a Parental Order still applies, with the added caveat that the intended parent must have a genetic link to the child. Therefore, this change only assists single parents who use their own eggs or sperm.
It is still a welcome development.
People have been campaigning for years for a variation to UK surrogacy law as it was seen to be discriminatory to single parents. The change was finally approved in December 2018 and came into force on 3 January 2019.
At Allard Bailey, we recognise that adoption and surrogacy are not just legal processes but deeply personal journeys, often following exhaustive conception attempts, or failed IVF. Our specialist solicitors can sensitively guide and advise you on the right legal framework to achieve the rights to protect you and your child. We appreciate that more than ever, in the run up to Christmas and New Year thoughts inevitably turn to family life and plans and hopes for the future.
In the words of Lady Justice King (as was) there are “serious legal and practical difficulties which can arise where men or women, desperate for a child of their own, enter into informal surrogacy arrangements, often in the absence of any counselling or any specialist legal advice.”
If you or anyone you know are considering adoption or surrogacy or you are an intended parent it is critical to get early advice, and here are some reasons why:
• To apply for an adoption order or a parental order: Both orders have “transformative effect” including extinguishing a surrogate parent’s rights.
• To be aware of the timeframe: The law requires an application for a parental order in a surrogacy arrangement to be made within 6 months of a child’s birth and UK domicile. We can guide you on some of the permitted extensions under the case law.
• If you are single: At the time of writing this blog, it was not possible for a single person to obtain a parental order in UK, but the law changed on 3rd January 2019 and it is now possible. You can read more here.
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