Surrogacy is where a child is carried through pregnancy by a woman who has entered into an arrangement with the intention that, at birth, the child and parental responsibility for it will be transferred to another person or persons who will become the legal parents of the child.
The woman who carries the child is the surrogate mother and the parents who enter the agreement with the surrogate, with the intention that the child should become their child are known as the commissioning parents.
The surrogate mother (and her husband, if applicable) must give free and unconditional agreement, with full understanding, to the order being made.
It is important to note that UK law prohibits commercial arrangements for surrogacy in the UK. The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by either of the applicants
Surrogacy arrangements are often made by heterosexual couples who have experienced issues of infertility, and also same sex couples.
Partial or traditional surrogacy
Partial surrogacy is the process whereby the surrogate mother is also the child’s genetic (biological) mother. The child will be genetically related to the father (or sperm donor) and the surrogate mother.
Total or gestational surrogacy
Total surrogacy is the process whereby the woman carrying the child is genetically unrelated to the child. She is a gestational parent. In total surrogacy the embryo is carried by the surrogate and can be created from:
- A genetic mother’s egg and genetic father’s (or donor’s) sperm.
- A donor egg and genetic father’s sperm.
- A donor egg and donor sperm.
What is the legal status of the participants in a surrogacy arrangement?
The surrogate mother is treated as the child’s legal mother until, and unless, that situation is altered by order of the court.
If the surrogate mother is married, the husband of the surrogate mother (unless the court is satisfied that he did not consent to the arrangement) will be treated as the father of the child.
The commissioning father (who has donated sperm) is a genetic parent but does not acquire parental responsibility by virtue of this until the relevant order is made. If the surrogate is unmarried, a male commissioning parent who is genetically related will be treated as the legal father but this does not, of itself, confer parental responsibility.
The non-biological commissioning parent does not acquire legal parenthood or parental responsibility until the relevant order is made.
The permanent transfer of legal parenthood and parental responsibility to the commissioning parents can only be brought about by the making of an adoption order or a parental order.
A parental order confers legal parenthood and parental responsibility on the commissioning parent or parents. The effect of the order is that, in law, the child is for all purposes treated as their child and not the child of any other person. The commissioning parents can apply for a Parental Order 6 weeks after the child is born, and before the child is 6 months old.
The application can be made by one or two people who must be aged at least 18 years.
The applicant or one of the applicants where there are two people must have provided the gametes (genetic material) used to create the embryo. An arrangement involving both donor sperm and eggs would not be permitted within the scope of the legislation.
The conditions to be satisfied include that:
- The child must be living with the commissioning parent or parents.
- At least one of the commissioning parents must be domiciled in the UK, in the Channel Islands or the Isle of Man.
- No money or other benefit must have been given or received, other than for reasonable expenses, unless the court authorises such payment.
For further information regarding the law around surrogacy within the UK then please contact our Family Team for a free and confidential consultation.