National Fertility Awareness Week: 6 things you need to know about surrogacy

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National Fertility Awareness Week: 6 things you need to know about surrogacy

31 Oct 2014

During this National Fertility Awareness Week (w/c 27th October 2014), our family team takes a look at the law surrounding surrogacy.

What is surrogacy?

Surrogacy is the process whereby a woman becomes pregnant and gives birth to a baby on behalf of a couple (“the intended parents”) with the intention that the baby will be the child of the intended parents following its birth.

How does surrogacy work?

There are two main methods which are used in the surrogacy process: these are “straight” surrogacy and “host” surrogacy.

Straight surrogacy (also known as full surrogacy) involves the use of the gametes of the intended father and surrogate mother.  It is usually done using artificial insemination or intrauterine insemination.

Host surrogacy (also known as partial surrogacy) involves the implantation of an embryo (IVF) in the surrogate mother using either:

  • The gametes of both intended parents, where the intended parents are a male and female couple;
  • A donated egg which is then fertilised by the gamete of the intended father (or one of them); or
  • An embryo created using wholly donor gametes (i.e. no genetic link to the intended parents).

Who is/are the baby’s parent(s) following surrogacy?

The law in the UK is clear that the woman who gives birth to a child, regardless of the child’s genetic make-up, is automatically the legal mother of that child.  This means that even where a surrogate mother is not genetically related to the baby, she is its legal mother unless and until parenthood is transferred via adoption or a Parental Order.

If the surrogate mother is married at the time of her becoming pregnant via a surrogacy arrangement, her husband or civil partner is the legal father or second parent of the baby unless it can be shown that he/she did not consent to the treatment.

If the surrogate is unmarried, then the genetic father or either intended parent can potentially be named on the birth certificate as the second legal parent.

What happens if the surrogate wants to keep the baby?

The surrogate mother is the legal mother of the child she gives birth to and therefore has the right to keep the child if she so decides.  This is the case whether or not she is genetically related to the child.  In addition, surrogacy arrangements are not enforceable under UK law, regardless of whether contracts have been signed and expenses paid for by the intended parents.

How do we become the baby’s parents?

Eligible intended parents can acquire parental responsibility and become the child’s legal parents by obtaining a Parental Order.

In order to obtain a Parental Order you must be married, in a civil partnership or living together in an enduring relationship.  The child must be living with you at the time when you apply for the Order and you and the child must be residing permanently in the UK, Channel Islands or Isle of Man.  At least one of you must be genetically related to the child.

There are many requirements to a Parental Order and you are strongly advised to seek legal representation in respect of the same before your baby is born.

If neither of you are genetically related to the child, the only way to become the child’s legal parents is by adoption.

Will I/we be entitled to paid leave from work to look after the baby?

From April 2015, yes!  Eligible intended parents, who have or intend to have a Parental Order, will be entitled to statutory adoption leave and pay as a result of the Children and Families Act 2014.

That legislation also aims to ensure that adoption leave and pay is brought into line with that available to birth parents.

Intended parents via surrogacy will also be entitled to unpaid parental leave.

For more information on surrogacy, please contact us or call 0161 832 3434.

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