This is a brief guide on the law on surrogacy. It does not cover all aspects of surrogacy law and does not cover the situation if the child is born outside of the UK.
Surrogacy is legal within the UK, but parties cannot generally rely on a surrogacy agreement as this is not binding on the Court.
Since under the Surrogacy Arrangements Act 1985 (“SAA 1985”) commercial arrangements for surrogacy are prohibited, this means that the Court must be satisfied that (unless authorised by the Court) no money or other benefit (other than for expenses reasonably incurred) has been given or received by either of the Applicant parents.
Who are the legal parents at birth?
According to the SAA 1985 the surrogate mother (the person who gave birth to the child) 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 will be treated as the father of the child (unless the husband did not consent to the surrogacy).
How to become the child’s legal parent
In order to become the child’s legal parent, the Applicant parents will need to apply for a Parental Order. A Parental Order transforms the identity of the child so that he or she becomes the child of the applicants and any legal links to any other parents are brought to an end. An application for a parental order can be made as an individual or with a partner.
If an application is made with a partner, at least one person of that couple must be genetically related to the child (i.e. provided either the egg or the sperm) and the couple must be married, civil partners or living as partners. The child must be living with the couple making the application and must be residing in either the UK, Channel Islands or Isle of Man.
If applying as an individual, they must have personally provided either the egg or the sperm and have the child living with them and also reside permanently in the UK, Channel Islands or Isle of Man.
An application for a Parental Order must be made within 6 months of the child’s birth and the Applicant parents will also need to have the consent of the surrogate mother and anyone else who is a parent of the child (for example the husband of the surrogate mother). The Applicants will also need to provide the child’s birth certificate and proof of the genetic link between at least one of the parents and the child (usually by way of a DNA test).
If you would like further information on surrogacy or other family matters, please contact a member of our Family Team, on our Reading office number 0118 9589711 or email [email protected]. We offer a one-hour confidential fixed fee meeting at our Queens Road offices for £95 including VAT.