Surrogacy Law

What UK Surrogacy Law Allows

Surrogacy is lawful in the UK. Two statutes do most of the work: the Surrogacy Arrangements Act 1985, which deals with the arrangement itself, and the Human Fertilisation and Embryology Act 2008, which decides who the child's legal parents are. This page covers England and Wales; GOV.UK confirms that the process for becoming a legal parent is different in Scotland and Northern Ireland.

Section 1A of the 1985 Act provides that no surrogacy arrangement is enforceable by or against any of the persons making it. GOV.UK confirms that this is so even if you have a signed document with your surrogate and have paid her expenses.

So the arrangement cannot be used to make the surrogate hand over the child, or to make the intended parents take on the child's care. Government guidance calls such situations extremely rare but records both risks, which is why everyone should understand the legal position before conception.

Who the Legal Parents Are at Birth

Under section 33 of the 2008 Act the woman who carries the child, and no other woman, is treated as the child's mother, whether the embryo transfer took place in the UK or elsewhere. Section 47 adds that a woman is not treated as a parent merely because her egg was used, so an intended mother who is the genetic mother is not a legal parent at birth.

If the surrogate is married or in a civil partnership, sections 35 and 42 treat her spouse or civil partner as the child's other parent, unless it is shown that they did not consent to the treatment. Where she is not married, or that consent was not given, government guidance says the clinic's forms may also deal with who the legal parents are at birth: see our page on donor conception and legal parenthood.

As the legal mother, the surrogate has parental responsibility. Government guidance warns that intended parents without legal parenthood may lack authority over the child's medical care and education, and may face difficulty travelling abroad with the child.

GOV.UK says legal parenthood can be transferred after the birth by a parental order or by adoption, and that adoption is the only route where neither intended parent is genetically related to the child.

Payments, Advertising and Commercial Surrogacy

The 1985 Act prohibits surrogacy run as a business. Under section 2 it is an offence to initiate or take part in negotiations for a surrogacy arrangement, to offer or agree to negotiate one, or to compile information for use in making one, where that is done on a commercial basis, which means for payment. The surrogate and the intended parents do not commit that offence by making their own arrangement, and non-profit making bodies have a limited exemption.

That is why a solicitor can advise you on the law but cannot negotiate the terms of your arrangement for a fee: government guidance gives exactly that example. The guidance also states that it is a criminal offence to advertise that you are looking for a surrogate or are willing to act as one. We do not act in criminal proceedings.

Payments to the surrogate are treated differently. GOV.UK says you cannot pay a surrogate in the UK, except for her reasonable expenses, and on a parental order application the court must be satisfied that no money or other benefit, other than for expenses reasonably incurred, has been given or received, unless the court authorises it. The law does not define reasonable expenses. As a guide, government guidance says the family court has generally accepted:

• the surrogate's loss of earnings, and her partner's or spouse's
• additional childcare, and help with additional cleaning, to support the pregnancy
• travel and accommodation before, during and after the pregnancy
• maternity clothes, additional food and supplements, and classes or therapies
• a modest recovery break for the surrogate and her family

Where more has been paid, the guidance says the court has to decide whether to authorise it retrospectively, with the child's welfare as its paramount consideration.

Evidence and Common Problems

A written agreement is not binding, but government guidance calls it a statement of intention and suggests it may record the marital status of everyone at conception, the pregnancy and birth arrangements, what happens if something goes wrong, future contact and the expenses: how much is paid, when and how.

Keep these from the start:

• a dated record of every payment to the surrogate and what it was for, because intended parents have to disclose precisely what was paid
• the clinic's consent forms, completed in full
• evidence of the surrogate's marital or civil partnership status at the time of treatment
• the child's full birth certificate, which GOV.UK lists for the court application
• wills, which the guidance calls sensible to consider and our will writing service can prepare

The problems that matter most are hard to correct afterwards. The Act requires the gametes of at least one applicant to have been used. It requires the agreement of the surrogate and of any other legal parent, unless that person cannot be found or is incapable of giving agreement. And it requires the application within six months of the birth: in Re X (A Child) (Surrogacy: Time Limit) the High Court held that a late application is not barred merely because that period has expired, but said every case is fact specific.

An overseas surrogate adds a second legal system. GOV.UK says a parental order can only be made once the child has reached the UK, and advises independent legal advice to confirm that the child is entitled to enter and remain here. Those questions belong to our pages on registering a child as British and family immigration.

How the Legal Process Works

The legal steps run in this order:

1. Advice before conception. The intended parents check that they can meet the parental order conditions, which the guidance says should happen before an arrangement goes ahead.
2. The written agreement. The adults record their intentions themselves, and the guidance says UK surrogacy organisations can help. Nobody may negotiate the terms for payment.
3. Treatment and consent. The clinic's forms record consent to treatment and may deal with who the legal parents are at birth.
4. The birth. The surrogate is the legal mother, and her agreement to a parental order is ineffective if given less than six weeks after the birth.
5. The application. The intended parents apply to the family court on form C51 within six months of the birth. The child's home must be with them, and at least one of them must be domiciled in the UK, the Channel Islands or the Isle of Man.
6. The report and the hearing. The court asks Cafcass for a parental order reporter, and the surrogate and any other legal parent record their agreement on form A101A.
7. Registration. The court sends the order to the General Register Office, which makes an entry in the Parental Order Register so that new birth certificates can be ordered.

The court fee is given in the GOV.UK surrogacy guide, the GOV.UK court fees page explains help with fees, and our page on the parental order application sets out the conditions in full.

When Legal Advice Is Especially Important

Government guidance records that the fertility regulator and the family court both recommend legal advice for anyone embarking on a surrogacy arrangement. It matters most where:

• neither intended parent is genetically related to the child
• the surrogate's spouse or civil partner may not have consented, or may not agree to a parental order
• you are applying alone, or it is unclear whether you are living as partners in an enduring family relationship
• an intended parent's domicile is uncertain, for example after years spent living abroad
• payments have gone beyond expenses, or no record was kept
• the surrogate lives overseas or the child will be born overseas
• the six months have passed, or the adults no longer agree about the child's care

Where the adults disagree, GOV.UK says the courts decide on the basis of the child's best interests. A parental order application counts as family proceedings under the Children Act 1989, so the court may also make a child arrangements order about where the child lives.

How RakLAW Solicitors Can Help

Our family solicitors at 42 Shad Thames in Southwark, a short walk from Tower Bridge, advise intended parents and surrogates as part of our adoption, surrogacy and fertility work. We start with a free 15-minute consultation and say honestly whether the parental order conditions look likely to be met on your facts. We do not negotiate the terms of a surrogacy arrangement, because the 1985 Act does not allow that to be done for payment.

If treatment has not started, our page on fertility law for intended parents covers the clinic stage. After the birth we prepare the parental order application and represent you at the hearing. RakLAW does not offer legal aid. Our charges are on our fees for family law page, and you can book an appointment or call 0203 345 2000.