Top 3 legal considerations for surrogacy

Surrogacy Law is complex and there are many issues which need to be considered by all parties. Amongst the most important legal considerations are:

1. Altruistic Process and Surrogacy Agreements

2. Establishing Legal Parenthood.

3. International and Jurisdictional Matters.

Altruistic Process and Surrogacy Agreements

While surrogacy is legal in the UK, it must be an altruistic process; commercial surrogacy is illegal.

The surrogate can be paid “reasonable expenses”. During the court process of transferring legal parenthood to the intended parents, the Family Court considers what has been paid before it makes an order. Legislation does not define “reasonable expenses” and the Family Court determines this on a case by case basis.

The intended parents and the surrogate (and spouse or partner) may wish to enter into a Surrogacy Agreement. In the UK this is permitted as a statement of intentions, but it is not a legally binding document and it is not legally enforceable.

Establishing Legal Parenthood

In the UK, the legal relationship between parents and a child born via surrogacy can be complex. By law a child can only have two legal parents at any one time. In a surrogacy arrangement there are the legal parents at birth, and the intended parents to whom legal parenthood must be transferred.

In the UK, the surrogate is the legal parent at the time of birth even if there is no genetic link with the child. If the surrogate is married or in a civil partnership at the time of conception, their spouse or civil partner will automatically be the child’s second parent at birth (unless they can prove that they did not consent to the arrangement). If the surrogate is not married or in a civil partnership and the surrogacy involves sperm donation by one of the intended parents, the sperm provider is recognised as the legal father at birth.

Following the child’s birth, legal parenthood can be transferred to the intended parents by an application to the Family Court to obtain either a Parental Order or an Adoption Order. There are several important criteria set out in legislation which must be met in order to obtain an order. For example, an application should be made within six months of the child’s birth, and the surrogate must give consent to an order being made, but cannot give consent until 6 weeks from the date of the birth has passed.

International and Jurisdictional Matters

Surrogacy laws vary significantly across different countries and there is no international framework which regulates surrogacy services, or the recognition of legal parenthood across borders.

Intended parents in the UK who wish to enter into an international surrogacy arrangement should seek specialist legal advice both in the UK and in the country where the child will be born (and any other country involved).

Some important considerations include:

– Whether there is a clear legal framework regulating surrogacy in the country where the surrogacy will take place.

– Who will be recognised as a legal parent following birth, and securing legal parenthood in the UK.

– The child’s nationality at birth and the arrangements for registering the birth.

– Post-birth travel: understanding immigration procedures and obtaining necessary travel documents.  

About Lucina Troy: A specialist Modern Families and Children Lawyer. In the Modern Families space Lucina advises individuals who want to create a family via an alternative path to parenthood, helping them secure, protect, and define the intended legal parent-child relationships. In the Children Law space Lucina undertakes a wide variety of work, including child arrangements and matters of parental responsibility, paternity testing, child maintenance and financial provision, child relocation, child abduction, injunctions and protective orders, disclosure orders, recognition and enforcement of foreign orders, breaches of orders and enforcement, and appeals. Lucina also speaks and provides workshops and seminars to Schools and Businesses, raising awareness and understanding about Modern Families and Children Law matters in schools and in the workplace.