Surrogacy Solicitors
Surrogacy offers a route to parenthood for those who may otherwise not be able to have a family. The law surrounding surrogacy can be complicated and confusing, but our specialist surrogacy lawyers can advise you through the process. To speak to a member of our expert surrogacy solicitors please call Goodman Ray Solicitors on 020 7608 1227 অথবা অনলাইনে আমাদের সাথে যোগাযোগ করুন.
What is Surrogacy?
Surrogacy involves a surrogate agreeing to carry and give birth to a child for another person or couple (the ‘intended parents’). There are two primary types of surrogacy:
- Traditional Surrogacy: The surrogate uses her own egg, making her both the genetic and birth mother.
- Gestational Surrogacy: The surrogate carries a pregnancy created through IVF, using an egg and sperm from the intended parents or donors. This is the most common form of surrogacy in the UK.
Is Surrogacy Legal in the UK?
Yes, surrogacy is legal in the UK. However, The Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008 strictly regulate the practice so that it is illegal to:
- Pay a surrogate beyond reasonable expenses: Reasonable expenses include things such as medical and travel costs, as well as loss of earnings. Commercial surrogacy arrangements are prohibited in the UK. This means that all surrogacy that takes place in the UK must be altruistic.
- Advertise: It is a criminal offence to advertise:
- For a surrogate
- That you are willing to act as a surrogate
- That you are a third party willing to facilitate the making of a surrogacy arrangement (though this last offence does not apply to non-profit organisations).
Are Surrogacy Agreements Enforceable Under English Law?
Surrogacy agreements are not enforceable in the UK. While such agreements can outline the intentions of both parties, they are not legally binding.
In the rare case of a dispute about the care of a surrogate born child, the family court will make decisions based only on what is in the child’s best interests. The fact of a surrogacy agreement will be considered and will be one of the factors that is taken into account by the judge, but it is not a determinative factor. It will be a matter for the Judge to decide the arrangements for the child, who they should live with and what contact if any there should be with the other parties.
With this uncertainty in the UK, many UK intended parents choose a surrogacy arrangement abroad, in countries where commercial arrangements are permitted and surrogacy contracts are enforceable. However, cases involving multiple jurisdictions can be complicated and bring with them issues about the status of a child with regards to parentage and nationality, which has significant consequences for families if they are not properly guided through the process. We work closely with lawyers in other jurisdictions to make sure that our clients are legally protected in all countries involved in the surrogacy arrangement.
Who are the legal parents of a child born via surrogacy?
When a child is born as a result of surrogacy arrangement, the surrogate is always the legal mother of the child. If the surrogate has a spouse or civil partner, then that person will be the child’s other legal parent.
If the surrogate is unmarried and not in a civil partnership, the genetic father will be the child’s other legal parent (unless it can be shown that the surrogate’s spouse/civil partner did not consent to the surrogacy arrangement), and can be named on the birth certificate, which will also give him parental responsibility for the child.
For the intended mother or parents to become the legal parent(s) of the child, an application has to be made to the Court for a parental order. This has the effect of the transferring legal parentage from the surrogate (and her husband) to the intended parent(s).
What is a Parental Order?
A parental order is a legal process that transfers legal parenthood from the surrogate (and her spouse or civil partner, if applicable) to the intended parent(s).
The legal framework for parental orders is set out in Section 54 of the Human Fertilisation and Embryology Act (HFEA) 2008. The HFEA sets out the many criteria that must be met in order to apply for a parental order. These criteria include:
- The application for a parental order must be made by one or two people who are at least 18 years old. If the application is made by a couple they must be married, in a civil partnership, or living as partners in an enduring family relationship.
- Either or both of the applicants must be domiciled in the UK.
- The child must have been carried by a woman who was artificially inseminated and at least one of the intended parents must be genetically related to the child.
- The child must be living with the intended parents at the time the application was made and at the time the order is made.
- The application must be made within six months of the child’s birth.
- The surrogate and her spouse or civil partner must consent to the order (consent cannot be given until at least six weeks after the birth).
- The court must be satisfied that no money, other than reasonable expenses, has been given.
Not all of these conditions are absolute. The law in this area is complex, but one of our expert surrogacy lawyers can guide you through the process.
International Surrogacy Arrangements
Surrogacy law differs drastically between jurisdictions. For example, in some countries there is a strict ban on surrogacy in all forms, such as Italy, whilst in other countries commercial surrogacy arrangements are permitted.
International surrogacy involves arranging a surrogacy outside the UK. Whilst this is legal, it presents additional complexities:
- International surrogacy arrangements are not enforceable in the UK.
- Legal parentage established abroad is not recognised in the UK. UK rules on parentage apply to international surrogacy arrangements even if a separate legal process has been completed abroad to transfer parentage to the intended parents. It is always necessary to apply to the court for a parental order.
- Obtaining citizenship and travel documents for the child can be challenging, as some countries may not recognise the intended parents as legal parents.
If you are considering entering an international surrogacy arrangement, it is essential that you obtain specialist legal advice from the outset.
How Can Goodman Ray’s expert surrogacy solicitors help you on your surrogacy journey?
The law surrounding surrogacy is complicated. Our specialist surrogacy solicitors can provide invaluable assistance and help you:
- To understand and manage the legal issues associated with surrogacy, including the complexities associated with international surrogacy arrangements.
- To obtain a parental order for a surrogate born child.
- To resolve a dispute that arises in relation to the surrogacy process.
The Role of Consent in Surrogacy
Consent plays a vital role in many aspects of the law in England & Wales, including sexual activity, medical treatment, and adoption. Consent is also a key element in surrogacy. You can find out more about the role of consent in surrogacy in this blog by Clemmie Bridges.
Significant Reported Surrogacy Cases
This was the first case and a landmark judgment in which the court was asked to consider the making of a state parent adoption order to one of the intended fathers, in circumstances where the surrogate had not given her consent to the making of a parental order and whether in these circumstances an adoption order could be made. The adoption order was refused. I acted for the surrogate. This case was shortlisted for the Jordan’s Family Law Case of the Year 2024 and attracted significant press interest. Read more…
This was the first case in which the court dispensed with the consent of a surrogate to make an adoption order in circumstances where the surrogate did not consent to the making of a parent order, so this order could not be made. N, an 18 year old, was born as a result of a surrogacy arrangement. Before birth, N’s surrogate mother lied to the intended parents that she had miscarried the child. The intended parents found out that she had lied and at birth initiated private law proceedings. When N was 18 months old he was transferred to the care of his intended parents under a child arrangements order. No parental order could be made because the surrogate refused to give her agreement. Just before N’s 18th birthday an adoption application was made. Read more…
The Court of Appeal, for the first time, provided clarification on the consent requirements of Section 54(6) of the Human Fertilisation and Embryology Act 2008.
The case concerned a surrogate mother who had transferred the child to the intended parents shortly after birth, but later withdrew her consent to the parental order. The court found that her consent was neither free nor unconditional, being given under ‘palpable pressure’ during a remote hearing where she was unrepresented, and on the condition that that a child arrangements order to spend time with the child was made (one was not, and the court made clear that the HFEA 2008 does not permit ‘circumstances where one order is the price for the other’). This case was shortlisted for the Jordan’s Family Law Case of the Year 2023. Read more…
This was the first case in which a court has made a parental order in respect of an adult child.
Mr and Mrs X had a son, Y, born in 1998 through a surrogacy arrangement in the United States, where they were legally recognised as his parents. Upon returning to the UK, they were unaware of the need to apply for a parental order under UK law. In 2021, they learned of this requirement and promptly sought a parental order, despite Y being 24 years old at the time. The court granted the parental order, emphasising the importance of legal recognition for the family. Read more…
Sir James Munby, President of the Family Division, emphasized that the absence of a sexual relationship does not invalidate the marriage under English law, and thus that the requirements of the HFEA 2008 were fulfilled. Read more…
The Court of Appeal addressed a dispute between two couples following a surrogacy arrangement. The intended parents, a male same-sex couple (A and B), entered into an agreement with a married couple (C and D), where C would act as the surrogate. However, after the child’s birth, C and D decided not to honour the agreement, leading A and B to seek a parental order. The court reaffirmed that the law does not apply special considerations to surrogacy cases and the child’s welfare remains paramount. The court also noted the absence of a proper legal framework for surrogacy arrangements in the UK. Read more…
The High Court addressed the necessity of the surrogate mother’s consent in granting a parental order. It was reiterated that a parental order cannot be made without the surrogate’s free and informed consent, even if the children are living with the intended parents and there is no dispute about their welfare. Read more…
The Court provided guidance on handling parental order applications arising from international surrogacy arrangements. The case involved commissioning parents who had entered into a commercial surrogacy arrangement in India. The court set out that any application for a parental order in relation to children born outside the UK must be allocated to a High Court judge. The court also set out that, with limited exceptions, in completing a parental order report the reporter must meet the child with the intended parents in order to adequately assess the child’s welfare. Read more…
Get in touch with our Surrogacy Solicitors
If you are considering surrogacy and would like to discuss your options, or if you are already on a surrogacy journey and need guidance on legal matters, we can help.
Please get in touch using whichever method is easiest for you. You can complete the form on our website, email us at mail@goodmanray.com, or contact the surrogacy lawyer you would like to work with directly using the email address on their profile. Alternatively, you can call us on 020 7608 1227 to speak with someone who can explain how we can support you throughout the surrogacy process.
Call us
☎️ Call our Surrogacy Lawyers at our লন্ডন office on 020 7608 1227
☎️ Call our Surrogacy Lawyers at our ব্রাইটন office on 01273 090211
