FAQs - surrogacy law in the UK

Surrogacy has become an increasingly popular and prominent path to parenthood for those who are unable to conceive a child themselves. Over the past decade, the number of parental orders made in this country following a surrogate birth has tripled, but the true figure for children born by way of a surrogacy arrangement is thought to be significantly higher, as many parents decide not to apply for such orders. Despite this burgeoning growth, surrogacy law in the UK remains complex and is widely considered to be unfit for purpose.

The Law Commission of England and Wales and the Scottish Law Commission have worked on a project reviewing the laws on surrogacy since 2017. Their final report was published on 29 March 2023 and includes proposals that focus on better reflecting the wishes of everyone involved. For the time being, however, the laws and the process of surrogacy will remain the same.

Below are some frequently asked questions on current surrogacy law and process which highlight many of the issues that prospective parents are likely to encounter and the options that are available.

What is surrogacy?

Surrogacy is where a woman carries and gives birth to a child for another person, or a couple. There are two different types of surrogacy arrangements.

A straight surrogacy arrangement is one in which the surrogate will be the child’s biological parent and use her own eggs together with the sperm of the intended father or a donor. It is often dealt with informally and sometimes without the assistance of a fertility clinic.

A gestational surrogacy arrangement in comparison is where the intended parents will be the biological parents of their child, or where the child might be conceived with either eggs or sperm from a donor. The surrogate has no biological link to the child. By the very nature of these type of arrangements, conception must happen at a fertility clinic, either in the UK or overseas.

It is important to remember that in both cases the surrogate will be the child’s legal parent.

Surrogacy in the UK

As intended parents, can we be named on our child's birth certificate?

It is possible to enter into a surrogacy agreement in the UK but it is not legally enforceable. No matter what the biological position and where the child is born, the surrogate will always be recognised as the legal mother of the child, and if she is married her spouse or civil partner will be recognised as the child’s legal father/second legal parent.

If your surrogate is single, one of the intended parents may be named on the initial birth certificate but this will depend on a number of factors, including whether your child was conceived at a fertility clinic. Our specialist surrogacy law team can advise you on the various HFEA forms you can sign prior to conception.

Ultimately this legal position means that as intended parents you will not be fully recognised as your child’s legal parents at birth, and so you will need to apply for a parental order once your child has been born.

The Law Commission’s report has proposed the development of a new pathway to parenthood, which, if followed, and provided various criteria are met, will mean that intended parents will be recognised as the legal parents from birth, as well as being named on the first birth certificate.

However, the publication of the final report and draft bill on 29 March 2023 has not automatically changed the law on surrogacy in England and Wales.

Currently, it remains the case that intended parents still require a parental order to be recognised as the child’s legal parents.

What is a parental order?

After your baby’s birth, you will need to make an application to the UK Family Court for a parental order. This is the UK solution in a surrogacy arrangement, and once granted, it will mean that the status of your surrogate (and her spouse, if married) is extinguished and parentage reassigned to the intended parents.

Is surrogacy legal in the UK?

It is legal to enter into a surrogacy arrangement in the UK, but there are some restrictions, which are important to bear in mind.

• It is a criminal offence to advertise that you are looking for a surrogate or that you are looking to act as a surrogate. This can make it difficult for intended parents and surrogates to find one another, but also for the non-profit making organisations in the UK to grow their numbers of surrogates.
• It is also a criminal offence for a third party organisation to receive payment for arranging a surrogacy journey although there are some exemptions for non-profit making organisations.
• Finally, it is a criminal offence for organisations to match or broker surrogacy arrangements in the UK (this is the case even if it is an international surrogacy agreement). While there has not been a prosecution under this offence, it does mean that lawyers are not able to draft or negotiate the terms of a surrogacy agreement.

How does surrogacy work in the UK?

As explained above, there are two main options when considering a surrogacy arrangement – straight surrogacy, where a surrogate will use her own eggs together with the intended father’s sperm, and gestational surrogacy, where the surrogate is not genetically related to the child and the gametes of the intended parent/s are used (sometimes with the help of a sperm/egg donor).

In the UK, intended parents find a surrogate by either joining a surrogacy agency (usually a not for profit organisation which can support you with finding a surrogate), looking online (on websites or Facebook groups) or via family/friends.

Conception will happen via artificial insemination, either at home or at a fertility clinic. The surrogate will then carry the pregnancy for the intended parent/s and will assume care of the child at birth.

When the child is born, the surrogate is the legal mother, and if she is married, her spouse is the second legal parent. The intended parent/s must apply to their local Family Court for a parental order in order to extinguish the status of the surrogate and her spouse, and reassign parentage to the intended parent/s.

The court process usually takes 4-12 months, and will involve one or more court hearings.

What is involved in the surrogacy process?

There are various steps involved with a surrogacy journey in the UK, and, in very brief outline, these are as follows:

• Creating embryos - if you are planning to go through gestational surrogacy (ie where the surrogate won’t be genetically related to your child) then you will need to create embryos. If you need to use an egg or a sperm donor, then it is important to find a clinic in the UK which can assist you with this, and will be able to support you to create embryos in preparation for your surrogacy journey.
• Finding a surrogate - you will also need to find a surrogate, and this can take some time. There are several surrogacy not for profit organisations in the UK, with the largest being Surrogacy UK, COTS, My Surrogacy Journey and Brilliant Beginnings. They each work in a variety of different ways and support intended parents to find a surrogate. There are also some smaller boutique surrogacy agencies in the UK while many intended parents will use Facebook/websites to meet surrogates and join the surrogacy community. Intended parents sometimes find that friends/family members come forward throughout their surrogacy journey and offer to help.
• Entering into a surrogacy agreement - the next step will be to ensure that you are all on the same page, and in order to do this, it is sensible to put a surrogacy agreement in place. This should record your intentions and set out the parameters of your agreement, including information such as how many embryo transfers you will have, who will attend hospital appointments and what expenses you are planning to pay your surrogate as part of your surrogacy journey.
• Getting counselling/legal advice - if you are conceiving with the support of a fertility clinic, you will be encouraged to have a number of counselling sessions to talk about the surrogacy agreement you are entering and the implications of this. This can help to ensure that everyone is on the same page. Your clinic may also insist that you seek legal advice before they will proceed with embryo transfer. Our surrogacy solicitors are familiar with providing this kind of support, including a confirmation letter to your clinic to enable you to proceed.
• Getting a positive pregnancy test
• Assuming care of your child following the birth - our surrogacy law team always advises that you have a conversation with your maternity hospital as soon as your pregnancy is established to understand what the arrangements will be at the birth. We can support you with this if you are having difficulties.
• Registering the birth - you will need to attend the local registry office to register the birth, and this must reflect the legal position at birth.
• Applying for a parental order - the next big step is to make your application for a parental order. You do not have to wait six weeks following the birth to apply, and you can do this by downloading a Form C51 and sending it to your local family court together with your marriage certificate (if relevant), a copy of your child’s initial birth certificate and the court fee. Our solicitors can provide legal advice and support you with this, and we can make your application on your behalf if you would like us to do so.
• Getting a new British birth certificate - once your parental order has been granted (a process, which usually takes 4-12 months) you will be contacted by the General Registry Office to apply for a new birth certificate recording you as the legal parents of your baby.

Can a surrogate decide to keep the baby?

In England and Wales, the surrogate will continue to be the legal mother of the child until such time as a parental order is obtained. A parental order requires both the surrogate and her spouse (if married) to consent. This means that at any point up until a parental order is granted, the surrogate could decide to keep the baby, or simply withhold her consent.

In practice, this is rare, and very few cases result in disagreement or a surrogate withholding her consent. Our specialist surrogacy law team can advise you about the various options available in these circumstances, if this is something you are concerned about, and has experience dealing with cases of this kind.

As part of the new pathway proposed through the Law Commission’s final report, the surrogate will not need to formally give her consent, as above, provided all requirements are met. If, however, the surrogate withdraws her consent between conception and birth, she will be recognised as the legal parent, and the intended parents will need to apply for a parental order.

If the surrogate withdraws consent within the six weeks following the birth, she will need to apply for a parental order, with the intended parents automatically being recognised as legal parents.

Alongside the new pathway, revisions are proposed for the current parental order system, meaning that the court will have discretion to waive the need for a surrogate to consent.

These are only proposals, however, and do not reflect the existing law on surrogacy. Parental orders are still currently required, and a parental order still needs the surrogate and her spouse’s consent.

What can be done to legally protect us if we use a surrogate?

There is no way of providing or entering into any form of guarantee that the surrogate will give her consent to a parental order being made. Surrogacy agreements, or any other form of written or verbal agreement that purports to offer protection and guarantee that the surrogate will agree to a parental order, will not be enforceable.

However, there are various steps which you can take to mitigate risks. These can range from ensuring everyone has received independent legal advice, participating in implications counselling and making certain that you are all on the same page before proceeding to embryo transfer.

International surrogacy

Where are the most common overseas destinations for surrogacy arrangements?

The most common overseas destinations for intended parents who are considering a surrogacy arrangement are the USA and Canada. Historically Ukraine and Georgia were also popular destinations but the numbers there have reduced given the political situation in Ukraine. Our surrogacy team can advise you on the advantages and disadvantages of each destination.

Will we be recognised as the legal parents under UK surrogacy law following an international surrogacy journey?

In most overseas surrogacy destinations, you will be recognised as your child’s legal parents from birth. However, this will not be recognised in the UK, as regardless of biology and where in the world your child is born, UK law still recognises the surrogate as the legal mother, and if she is married, her spouse as the father or second legal parent.

This means you can be left in a bizarre situation where you have documentation from the country of your child’s birth that names you as the parents, but this is not recognised in the UK.

In order to resolve this position, you will need to apply for a parental order following the birth. Once granted, you will receive a British birth certificate for your child naming you as the legal parents.

We have UK connections, but currently live overseas - do we still need to apply for a parental order?

In most cases, yes. Depending on your future plans and status in your current country of residence, you will still not be recognised under UK family law as your child’s legal parents.

Whether or not you will be able to apply will depend on your domicile, as UK law says that at least one of the intended parents (or the intended parent, in the case of a single applicant) must be domiciled in a part of the UK, Channel Islands or Isle of Man in order to be eligible for a parental order. Domicile is a very particular legal concept which needs to be considered carefully if you have overseas connections. If you can’t establish a domicile in the UK, the court simply does not have the jurisdiction to grant a parental order.

Our surrogacy law team has experience of complex domicile cases and will be able to explore this with you and advise you on your ability to apply for a parental order.

How will we travel home after the birth?

This will depend on the country in which your baby is born. One of our immigration lawyers will sit down with you in an initial planning meeting to come up with a precise plan to ensure that you can get home as soon as possible with your baby. This may involve applying for British nationality and a British passport before travelling, or in some cases, it may be that you can look to apply for a local passport. We will advise you on the best option for you.

What is the process of applying for a parental order if our child is born overseas?

You can make your application for a parental order using a C51 application form and sending this off to the Family Court with a copy of your child’s birth certificate. You do not need to wait six weeks to apply, and we will usually make your application on your behalf while you are still overseas to get the ball rolling for you.

This application process can take 6-12 months and would usually involve 1-2 hearings before a High Court judge.

The court will look at a number of criteria in order to ensure you are eligible for a parental order and will also consider whether the making of the order is in your child’s lifelong best interests. We can provide legal advice on these criteria and support you with this process in a number of different ways.

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