Legal Considerations When Looking At Surrogates

Surrogacy is a term used when someone carries and gives birth to a child for another person or couple. This can be due to health reasons that prevent someone from being able to either get pregnant or carry a baby to full term. LBQT+ couples or individuals might also choose to use a surrogate to create or extend a family.

There are two types of surrogacy arrangements:

Traditional: This is where the surrogate also donates the egg to conceive the child.

Gestational: This means the surrogate is not genetically related to the child.

Regardless of the arrangement, there are various legal aspects to consider when considering this option, either as the intended parent or parents, or the surrogate.

Legal framework in the UK

Currently, under UK law, the surrogate, or person carrying the child, is classed as the legal parent. A parental order from the court is needed to transfer the legal responsibility to the intended parents, which can be obtained within six months after the birth of the child.

Because there is no such agreement as a pre-birth order, these laws can fail to protect both parties should something not go to plan. And, although reforms have been proposed to establish a more robust framework, the government rejected the amendments in late 2023.

Important factors to consider

Some intended parents might wish to have a pre-birth agreement drawn up but, as they’re not legally binding, these contacts are generally unenforceable which can lead to serious problems if one party has a change of heart.

The process of obtaining a parental order is another hoop to jump through and legal rights depend on whether there is a genetic relationship to the child. If there is a gestational surrogacy arrangement, then the intended parent or parents have to apply for adoption. There is also the matter of obtaining consent of the surrogate.

As well as the legal responsibilities of the child, financial implications are also important. While commercial surrogacy is illegal in the UK, people might choose to travel overseas where some laws may provide increased protection.

Some countries also allow payments for surrogacies which can add another complex element to an arrangement. In cases like this, it’s even more imperative to ensure legal aspects are in place, especially where issues such as language barriers and unfamiliar law systems can cause confusion.

Seeking help and advice

If you or someone you know is thinking about surrogacy, either as an intended parent or as a surrogate, it’s vital to seek professional guidance from specialist children’s solicitors to help navigate any complexities. Bringing a child into a family is a serious decision, even for parents who choose a traditional route. So, it’s crucial that you consider carefully before making any arrangements or agreements.

Finally, if you do decide to go ahead, you should choose to go through a reputable organisation such as SurrogacyUK, which offers support and advice for all parties involved.