For many couples who are unable to conceive naturally, or who have been unsuccessful with (or do not qualify for) IVF, surrogacy is an option worth considering. For those in the LGBT community, surrogacy offers an alternative method for creating a family.
There is an enormous amount of confusion around surrogacy in the UK. Therefore, it is imperative to seek the help of an experienced family solicitor to obtain the best legal advice.
What is surrogacy
Surrogacy occurs when a woman carries a child for another person/couple with the intention that when the child is born, the child will be handed over to the commissioning couple to raise as their own.
The general legislative provisions concerning surrogacy are contained in the:
- Surrogacy Arrangements Act 1985
- Human Fertilisation and Embryology Act, and the;
- Human Fertilisation and Embryology (Parental Orders) Regulations 2010.
There are two types of surrogacy:
Traditional/straight surrogacy – this is the simplest form of surrogacy and is sometimes referred to as artificial insemination. The surrogate’s egg is inseminated with the intended father’s semen, whether in a clinic or using a home kit.
Host/gestational surrogacy – involves the surrogate mother being implanted with the commissioning mother’s egg or donor eggs which have been fertilised by the commissioning father’s sperm. A surrogate carrying a baby in this way is not genetically related to the child. The IVF process takes place in a clinic.
How can I find a surrogate?
It is unlawful to advertise for a surrogate in the UK. Some not-for-profit organisations can match you up with a surrogate and help you find a fertility clinic. However, many couples choose to go overseas to find their surrogate because of the shortage in the UK. Should you embark on a surrogacy journey in an overseas jurisdiction, getting the best advice from an experienced immigration and family solicitor is essential, as the laws surrounding international surrogacy are unclear and, according to some, severely outdated.
Is surrogacy legal in the UK?
Contrary to popular belief, surrogacy is legal under UK law. However, it is unlawful to pay a woman to carry a baby via surrogacy; the commissioning couple are only allowed to pay for expenses relating to the carrying and giving birth of the child.
When a child is born in Britain, the woman who gives birth to it is the legal parent, whether or not she and the child are biologically related to one another. This fact remains, regardless of any surrogacy ‘agreement’ in place. Therefore, in the UK, a surrogacy arrangement is based entirely on trust. It is little wonder, therefore, that some couples choose to enter into a surrogacy arrangement overseas, where the contract is legally enforceable.
How do I become the baby’s legal parent after the surrogate gives birth?
To become the legal parent of a child born via surrogacy, the commissioning parents must apply for a Parental Order. When considering an application for a parental order, the court must be satisfied that no money or other benefit has been given or received, except for the payment of reasonable expenses. There is no statutory definition of 'reasonable expenses', and the issue has been the subject of case law. For example, in J v G  EWHC 1432 (Fam),  All ER (D) 36 (Jun), the applicants were in a civil partnership and had entered into a commercial surrogacy arrangement in California. The court held that the payments made of $57,000 to the surrogate were not so disproportionate to expenses reasonably incurred that the granting of an order would be an affront to public policy. In addition, the couple acted in good faith and granting a Parental Order was in the best long-term interests of the child.
In addition to being satisfied that the surrogate mother has not been paid anything more than legal expenses, the court will need to be sure of the following before it grants a Parental Order:
- one of the applicants is the child’s biological father
- the applicants are over 18 and are applying as a couple within six months of the birth
- at least one of the applicants is domiciled in the UK
- the child is in their care at the time of the application
- the surrogate mother (and her husband, wife, or civil partner) consent fully and freely to the Parental Order being granted
What is the procedure for applying for a Parental Order?
As soon as practicable after the issue of proceedings by the commissioning parents, the court must:
- set a date for the first directions hearing—unless the court directs otherwise, the first directions hearing must be within four weeks beginning with the date on which the application is issued
- appoint a Parental Order reporter to act on behalf of the child who is the subject of the proceedings to safeguard the interests of that child, and
- set a date for the hearing of the application
The agreement of the surrogate mother will be required and should be provided by using Form A101A, or a form to the same effect.
How can I bring my child back to the UK if the surrogacy took place overseas?
One of the most pressing questions of couples who decide to go overseas to find a surrogate is whether they can bring their baby back to the UK, and will he/she be a British Citizen?
If your child was not born in the UK, you might need to make an application to register the child either from abroad or in the UK. However, if you choose to bring your new baby into Britain, it is crucial you get the best advice from a London immigration solicitor to ensure you are compliant with UK Immigration Rules.
How we can help
OTS Solicitors is a London-based immigration, commercial and family law firm. We are highly ranked in the Legal 500 for Immigration law. The head of our family law department is also a member of Resolution, an organisation of around 6,500 solicitors who abide by a strict Code of Conduct and work to resolve family law disputes in non-confrontational ways.
We can assist you with domestic and international surrogacy arrangements from the beginning of the process to the end. Our solicitors are highly knowledgeable, and our family and immigration departments will collaborate to ensure you receive the best legal advice available.
OTS Solicitors is one of the most respected immigration and family law firms in London and is highly recommended by the Legal 500 for Human Rights and Immigration law. By making an appointment with one of our immigration and/or family solicitors, you can be assured of receiving some of the best legal advice available in the UK today.
Posted on: Thursday, 07 December, 2017