Surrogacy Law

Surrogacy is an increasingly popular option for individuals and couples looking to start or expand their families, particularly when traditional methods of conception are not possible.

In England and Wales, the legal framework surrounding surrogacy is complex, aiming to balance the rights and interests of the surrogate, the intended parents, and the child. 

Surrogacy Background

The legal context of surrogacy in England and Wales is primarily governed by the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008. These laws were enacted to provide a clear legal framework and address the ethical and legal issues that surrogacy arrangements can entail. 

Types of Surrogacy 

Partial surrogacy (also known as straight or traditional surrogacy) involved the surrogate’s egg being fertilised with the sperm of the intended father. 

Full surrogacy (also known as host or gestational surrogacy) is when the eggs of the intended mother or a donor are used and there is therefore no genetic connection between the baby and the surrogate. 

Legal Framework of Surrogacy

• Surrogacy Arrangements Act 1985: This Act makes it illegal to advertise for surrogates,  advertise that you are willing to act as a surrogate or to profit from arranging surrogacy. There are, however, not for profit organisations in the UK that can help facilitate arrangements. 
• Human Fertilisation and Embryology Act 2008: This Act provides updated provisions on the legal parenthood of children born through surrogacy. Under this law, the surrogate and her spouse or civil partner, if she has one, are initially considered the legal parents of the child.

Parental Orders 

To transfer legal parenthood from the surrogate to the intended parents, a Parental Order must be obtained. This process involves several steps:

1. Eligibility: Intended parents must be over 18 and either be married, in a Civil Partnership, or living as partners in an enduring family relationship. They must apply for the parental order within six months of the child’s birth.
2. Consent: The surrogate must freely and unconditionally consent to the Parental Order, but not before the child is six weeks old, ensuring she has had time to recover from childbirth and make an informed decision.
3. Genetic Connection: At least one of the intended parents must be genetically related to the child. 
4. Residence: The child must reside with the intend parents must be domiciled in the UK.

International Surrogacy

Many intended parents in the UK opt for international surrogacy, which can further complicate the legal landscape. International surrogacy arrangements must comply with both English law and the laws of the surrogate’s country. Upon returning to the UK, the intended parents must apply for a parental order to secure their legal parenthood status.

In addition, intended parents will also need to consider taking immigration law advice in respect of the child once they are born. 

Recent Developments and Future Directions

The Law Commission has been reviewing surrogacy laws in the UK to address modern family structures and technological advancements. Proposed reforms aim to streamline the process, making it more efficient and less stressful for all parties involved. These include pre-birth legal parenthood Orders and enhanced support and guidance for surrogates and intended parents.

Intended parents should seek legal advice early on to ensure there are difficulties once the child is born. If you feel you need advice, please get in touch via my contact page or contact me, Sigourney Lee-Smith directly 01295 204009 or slee-smith@se-solicitors.co.uk.