Stowe Senior Associate Liza Gatrell, experienced Surrogacy Lawyer, has compiled a list of surrogacy FAQs for those looking into seeking the help of a surrogate as a way of creating their family.
Though surrogacy can be legally complex and emotionally charged, it is an increasingly popular, and for many people necessary, route to parenthood. Year on year the number of parental orders made in this country is increasing, although the number of surrogacy arrangements may be far higher than any of us can predict. Whilst change is afoot surrogacy law in the UK remains unduly complex. Here’s a list of questions that I get asked often, to help add clarity to Surrogacy Law.
What is surrogacy?
Put simply, surrogacy is where a woman carries and gives birth to a child for another person, or couple. There are two difference types of surrogacy arrangement:
Traditional surrogacy – the surrogate is artificially inseminated with the intended father or donor’s sperm. The surrogate not only carries the child, but she also donates her egg and as such she is biologically related to the child.
Gestational surrogacy – the surrogate is implanted with an embryo via IVF and therefore she is not biologically related to the child. Often the sperm and egg of the intended parents will be used, which means that the child will be biologically theirs. Donor egg or sperm can be used if this is not possible. It is possible to use donor egg and sperm, but this will impact on your ability to apply for a parental order.
Is surrogacy legal in the UK?
Yes, it has always been legal to enter into a surrogacy arrangement in the UK. However, there are various rules and regulations which need to be carefully considered. Surrogacy contracts are unenforceable, which means that there must be a great deal of trust between all parties to the arrangement. It is also against the law for a third party (such as a solicitor) to take payment for negotiating a surrogacy contact.
How do I find a surrogate?
There are several non-profit organisations in the UK who can help. The most well-known are Surrogacy UK, Brilliant Beginnings and COTS. It is also not uncommon for family members or friends to offer their help.
What is a surrogacy agreement and are they binding?
A surrogacy agreement formally records how intended parents and surrogates want their arrangement to work, providing clarity and a mutual understanding of their respective commitments. However, surrogacy agreements are not enforceable in the UK and the intended parent(s) will need to apply to the court to become the legal parents of the child.
Is it legal to pay our surrogate?
Contrary to popular belief, it is not illegal to pay a surrogate mother for her services in the UK. However, during the parental order application, the court will need to authorise any payments made over and above the expenses she has reasonably incurred. There is no definition of reasonable expenses, which means the court must decide what is reasonable in each case. The court often takes quite a relaxed approach and there is a history of the High Court approving payments in international cases that more than covers expenses.
Can the intended parents be named on the child’s birth certificate?
The birth certificate must reflect the legal position at birth. This means that the surrogate will always be named on the birth certificate in the UK. Whether one of the intended parents can be named will depend on whether the surrogate is married/ in a civil partnership and the circumstances surrounding insemination.
What is a parental order?
A parental order makes the intended parent(s) of the child the legal parents and it permanently removes the legal parenthood of the surrogate and her spouse. Once the order has been made the birth will be re-registered and the original birth certificate will be sealed and only accessible to the child once they are over 18.
The court process can take between 4-12 months and will usually involve 1 or 2 court hearings.
Can the surrogate change her mind and try to keep the baby?
The surrogate remains the legal parent up until a parental order is made. The surrogates consent is also required before a parental order can be made. Many intended parents worry about what would happen if the surrogate wanted to keep the baby, but cases of this happening are incredibly low. The surrogate can also be concerned that she may be left holding the baby if the intended parents change their mind, or their circumstances change.
What are the most common overseas surrogacy destinations?
The most popular destinations for surrogacy arrangements abroad are US, Canada, Georgia, Greece and historically include Ukraine. It is important to do extensive research before embarking upon a surrogacy arrangement abroad. Your marital status and gender may dictate the options available to you.
It is important that you ensure that you comply with the law in the UK and your destination country.
If I am named on the foreign birth certificate/ post birth order will I be recognised as the legal parent in the UK?
No. In the UK the surrogate will always be the legal mother. Whether one of the intended parents can be recognised as the legal parent at birth will depend on the surrogate’s marital status and the circumstances surrounding the insemination.
Will my child be a British Citizen?
This depends. If it can be proven that the surrogate is single, and the biological and legal father is British, then he passes British Citizenship automatically to the child. This means that you can go ahead and apply for your child’s British passport.
If not, then an application for British Citizenship will need to be made first. There is a substantial fee for this and the process is lengthy.
How will I bring my child home?
The child will not necessarily be British at birth, even if one or both of the intended parents is British. Where the child is British an application will need to be made for a British Passport. These applications can be lengthy and often attract scrutiny. If a passport is issued, then the child can travel back to the UK using their British passport.
If the child is not British at birth, you may need to make an application to register the child as British. This too can be a lengthy process. Once the child has been successfully registered, they will be issued with a Certificate of Registration, which can then be used to apply for a British passport.
In some countries, such as the USA and Canada, your child will be recognised as a citizen in the destination country. This means that they can travel back to the UK on a local passport. You will just need to ensure that you apply for a British passport before the visa expires.
If my child is born abroad, do I need to be in the UK before I make the application for a parental order?
No, you don’t. The application for a parental order needs to be submitted within 6 months and this can be done whilst you are still abroad.
Get in touch
For more information about Surrogacy please do get in touch with our Client Care Team using the details below or make an online enquiry
Source: Children - stowefamilylaw.co.uk