It is very important to note that surrogacy arrangements in the UK are entirely unenforceable by legislation. Therefore, it is strongly encouraged that written agreements are drawn up to specify the details of the arrangement and limit problems. Lestons, like all other UK law companies, are prohibited by law from drawing these up. We have however included a link to a template at the end of this section.
It is illegal to advertise that you are seeking a surrogate or to advertise your services as a surrogate, the service and all transactions must be facilitated by an agency or by friends and family.
Within UK law, the surrogate will be the legal mother of the child, and if they are married or in a civil partnership, their partner will be the other parent. This still applies even if the intended parents are the full biological parents of the child. For the intended parents to gain legal parenthood, they must apply to the courts for a parental order (although in some cases an adoption order may be used). Through a parental order, the intended parents are transferred parenthood of the child and a new birth certificate with their names on will be issued.
How much can a UK surrogate be paid?
Surrogacy law in the UK prevents profit, however, when the original agreement is drawn up couples and surrogates may agree for the costs of the pregnancy to be covered. The main rule is that the surrogate must not financially profit from the service.
Typical costs may include:-
- Housing, if the couple wishes for the surrogate to move house;
- Transport costs, such as to GP, antenatal visits etc;
- Maternity clothing;
- IVF treatments (if applicable)
- Lost earnings during the period of pregnancy.
All of these must be evidenced, through things such as receipts and invoices, as the court will need to verify them. How these payments are covered will agree.
Is surrogacy risky?
The agreement, although in writing is not legally binding on anyone, as such any party can simply change their mind about what happens to the child or stop covering expenses. Using an agency can help here but as a faultless child is a result then it must be taken with extreme seriousness and commitment. It is imperative to have good lines of communication and clear rules from the onset.
How do I obtain legal parenthood? (Eligibility)
Several requirements must be met within a surrogacy arrangement for a parental order to be issued. These must be understood at the outset as many cannot be met if waiting until the child is born.
These requirements are:
- The intention of bearing the child must always have been to transfer parenthood.
- Only couples who are married, in a civil partnership or can prove an enduring relationship can apply for parental orders.
- Applicants must be over 18.
- The application for the parental order must be filed within the first six months of the child’s life (however, there are cases where judges have allowed this rule to be ignored).
- The child must be residing within the UK, Channel Islands or the Isle of Man with the intended parents at the time of the application.
- The Court must be satisfied that the surrogate and any other people who have parental claim over the child are happy with transferring legal parenthood.
- The court must be satisfied that the transaction has met the no-payment rules of surrogacy in the UK.
- Despite these rules, in some cases, exceptions have been made where it is clear it is in the best interest of the child.
How do I obtain legal parenthood? (Process)
To begin the process, the intended parent(s) must apply to the family court for a parental order within six months of the child’s birth, while the child is residing with them. The process will then begin going through court, it will involve the initial application, an assessment by a social worker from CAFCASS, a written statement filed by the intended parent/s and one or more court hearings in the family court.
The process length typically takes 3-12 months but can vary significantly, especially if the courts have trouble finding the surrogate to obtain consent. The process is usually shortened if the intended parents have legal representation. To complete the process the court must be satisfied that the intended parent(s) meet the criteria and will be able to ensure the child’s lifelong physical and emotional welfare.
At the end of the process, the court will issue a parental order which transfers legal parenthood to the intended parents, meaning the surrogate no longer has any parental or legal claim or responsibility for the child.
Surrogacy arrangements may also be completed through an adoption order, however, this is much less common as it is much more complex and often takes longer. For information on the legal process of obtaining an adoption order see the adoption law section.
Can I use international/cross-border surrogacy?
Cross-border or international surrogacy is not illegal in the UK and could be considered an option if a UK surrogate cannot be found, however, the child would be a citizen of its country of birth, as such many couples who take this option have the physical mother give birth in the UK. The rules regarding the legal process explained in the section above would still apply. There would normally be a charge for this service, along with expenses, the rates vary worldwide but so will the quality of the health checks on the mother. Because this activity is not illegal we strongly suggest you seek legal advice before contemplating such action.
It would be wise, if considering international surrogacy, to seek legal advice in the country where the child is intended to be born as well as in the UK. This way those using the method can ensure they do so legally.
The organisation Brilliant Beginnings has links to find, or become a surrogate along with what should be in an agreement.
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