Having a child through surrogacy

5th March 2018

Surrogacy is increasingly becoming an option for starting a family for people who are unable to conceive a child themselves, but what should parties to a surrogacy arrangement be aware of before making such a life-changing commitment?

Surrogacy is no longer an unheard of method of conceiving a child. In fact Kim Kardashian and Kanye West recently welcomed their third child via a surrogate and Kim was very open about their struggles which resulted in them going down that route. Last week, the Department of Health and Social Care produced guidance and information for intended parents, surrogates and health professionals in England and Wales in respect of having a child through surrogacy. Here are some of the key considerations:

  • There are two different types of surrogacy arrangements. ‘Straight Surrogacy’ where the surrogate provides her own eggs to achieve pregnancy and ‘Host Surrogacy’ where the surrogate does not provide her own eggs but rather either the eggs of the intended mother and sperm of the intended father are used or a donor egg and the sperm of the intended father are used.
  • Those wanting to engage in surrogacy, either as intended parents or surrogates are encouraged to join one of the three main UK surrogacy organisations – Childlessness Overcome Through Surrogacy (COTS), Surrogacy UK, or Brilliant Beginnings.
  • Surrogacy organisations can play a vital role in informing and supporting intended parents and surrogates as well as mitigating the risks involved.
  • It is important to give proper prior thought to the process of trying to conceive, pregnancy, birth and taking the baby home and the different ways these stages will affect all the parties involved.
  • It is important that you can meet the conditions of a parental order before you go ahead with a surrogacy arrangement.
  • Once a parental order has been obtained and legal parenthood has been transferred to the intended parents, a new birth certificate can be ordered via the General Register Office.
  • Intended parents are entitled to adoption pay and leave so long as they intend to apply for a parental order within 6 months of the birth of the child.
  • Intended parents also have the right to unpaid time off to attend up to 2 ante-natal appointments with the surrogate, if she is agreeable.
  • The surrogate is entitled to 52 weeks of maternity leave to recover from the birth.

Some of the key legal considerations to bear in mind are as follows:

  • Whilst surrogacy is legal in the UK, surrogacy arrangements are not enforceable in law.
  • It is a criminal offence to advertise that you are looking for a surrogate or are willing to act as a surrogate.
  • The surrogate (and if she is married or in a civil partnership, her consenting spouse or civil partner) will be the legal parents of the child at birth.
  • Following the birth of the child, you must go through the parental order process to transfer legal parenthood to the intended parents.
  • In order to apply for a parental order, certain criteria must be fulfilled including, but not limited to:
    • The intended parents must be married, in a civil partnership or living as partners in an enduring relationship;
    • Consent must be given by the surrogate (and their partner if married or in a civil partnership) and this cannot be obtained until 6 weeks after the baby’s born;
    • The child must be living with the intended parents;
    • The intended parents must apply within 6 months of the child’s birth for an order; and
    • The surrogate should not be paid more than reasonable expenses. These will be reviewed by the court during the parental order process.
  • Single people/parents cannot currently apply for parental orders in surrogacy cases (although the Government intends to introduce legislation to enable them to do so).

The Department of Health and Social Care’s documentation can be accessed here.

Please contact our family team if you would like legal advice in respect of a surrogacy arrangement.

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