
Surrogacy in England and Wales is governed by a combination of specific legislation and general Family Law principles. While surrogacy is legal, the system places significant emphasis on the welfare of the child and the rights of the individuals involved.
The two main statutes governing surrogacy are the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008.
Key Points of Surrogacy Law
Commercial surrogacy is prohibited.
Under the Surrogacy Arrangements Act 1985, commercial surrogacy is illegal. It is unlawful to advertise for or as a surrogate, or to act as a intermediary for profit. However, non-commercial arrangements where expenses are reimbursed to the surrogate are permitted.
Parental Orders
The legal parents of a child born via surrogacy are initially the surrogate and their spouse (if married). To transfer parenthood to the intended parents, they must apply for a Parental Order under the Human Fertilisation and Embryology Act 2008.
To qualify for a Parental Order, at least one of the intended parents much be genetically related to the child. The surrogate must consent to the Parental Order, and this consent cannot be given until at least six weeks after the birth.
Eligibility Criteria for Intended Parents
Intended parents must be over 18 years old. They can be married, civil partners, or living together in a long-term relationship. Single applicants are also eligible since changes in the law in 2019.
Surrogacy Agreements are not legally enforceable.
Surrogacy Agreements, even if detailed and signed, are not legally binding in England and Wales. This means that if a dispute arises, the court will prioritise the child’s welfare over the Agreement.
Birth Registration
Initially, the surrogate is registered as the child’s legal mother, and if she is married, her spouse is named as the other parent. After the Parental Order is granted, the intended parents can re-register the birth with their names.
Challenges and Reforms
The current surrogacy framework in England and Wales has been criticised for being outdated and restrictive. The Law Commission has proposed reforms, including the creation of a new pathway to legal parenthood that automatically recognises the intended parents at birth, this is provided certain safeguards are met. These reforms aim to better reflect modern family structures and streamline the surrogacy process.
Conclusion
Surrogacy in England and Wales is a viable option for those looking to start a family, but it requires careful navigation of the legal framework.
Intended parents and surrogates should seek legal advice and support throughout the process to ensure the best outcome for all parties involved.
If you feel you need advice, please get in touch via our contact page or contact Sigourney Lee-Smith direct (01295 204009 or slee-smith@se-solicitors.co.uk).