Surrogacy and the Law

At some point infertility is estimated to affect around one in six or one in seven UK couples – approximately 3.5 million people. Of the total number of couples trying to conceive naturally approximately 84% will get pregnant within a year, and about 92% within two years (latest figures published by the Human Fertilisation and Embryology Authority). 

So what are the options for those unable to conceive?  Surrogacy is increasingly becoming an option for many couples but what is the law relating to surrogacy arrangements in the UK?

In England and Wales surrogacy is not illegal.

When entering a surrogacy arrangement, neither the intended parents (the couple who intend to be the parents of the child after the surrogacy) nor the surrogate (the woman who carries and gives birth to the child) commit an offence.  However, it is illegal to advertise that you are looking for a surrogate or are willing to act as a surrogate.  It is also a criminal offence to broker a surrogacy arrangement on a commercial basis.  The way many surrogacy advisory groups and agencies get around this is by operating on a not-for- profit basis. 

Surrogacy agreements are unenforceable in UK courts, however, it is clear from UK case law on the subject that the courts have been sympathetic to the plight of intended parents who find themselves asking a court to uphold a surrogacy arrangement.

As a result of the difficulties in the UK many couples are exploring their options elsewhere such as in the US, India and the Ukraine.  However, specialist legal advice is crucial as care needs to be taken over conflicts of law on parenthood and constraints in relation to the payment of more than “reasonable expenses”. 

Some foreign law systems allow the intended parents to acquire parenthood status automatically either through a foreign court process or by allowing them to be named on the child’s birth certificate.  If you are domiciled in the UK or it is your intention to reside in the UK with the child, English law will apply to you. 

It is crucial that you obtain specialist advice in relation to citizenship, entry clearance and immigration so that there are no issues regarding returning to the UK with your child.  Intended parents should also seek advice regarding obtaining a Parental Order which will confer full parental status and parental responsibility on both intended parents. 

For expert advice in relation to surrogacy law contact Lisa Kemp.  Through our membership of the TAGLaw Internataional Law Firm Network we can access high quality legal advice in over 100 countries.

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