Your Quick Guide to Surrogacy Law in England & Wales

In 2023, it is not uncommon to see a glitzy tabloid spread of the latest celebrity to welcome a child by surrogate. The text will probably leave you saying, “how much?!” in relation to the seemingly lucrative cash sum said to have been paid over to the surrogate, whilst the celebrity in question looks stress free and radiant cuddling their new bundle of joy having been on the red carpet only yesterday. In reality surrogacy is a much less commercial (particularly in the UK) and more emotional affair.

Surrogacy is a form of assisted reproduction in which a person with a uterus carries and gives birth to a child for someone else (the intended parent(s)). A surrogate can help expand families for couples who have fertility issues, the LGBTQIA+ community, and single people.

A gestational surrogate is sometimes referred to as a “host”. They will carry the child for the intended parent(s) but will not be the biological parent to that child. The embryo will have been created with eggs/sperm from the intended parent(s) or a separate egg/sperm donor.

It is illegal for surrogacy to take place as a commercial transaction in the UK – there is no big pay day for the “host” and potential surrogates cannot advertise their services. Whilst this makes surrogacy more financially attainable for intended parents (though it is by all means not a cheap process), it does mean that the pool of available surrogates is much smaller than in countries such as the US or Georgia. As a result, there is a trend for using overseas surrogates to increase the options available.

Intended parents who wish to find out more about the practical surrogacy process should consult with a local fertility clinic. The clinic will support and guide you through the practicalities of starting your journey and the necessary medical procedures.

Once the child has been born you should instruct a family lawyer to apply for a parental order which transfers the parenthood of the child the intended parent(s), with the surrogate’s consent. The transfer is required as the law recognises the carrier of the child as the “legal mother”, and where the surrogate is married, their spouse automatically becomes the other legal parent.

If the surrogate is not married, the person providing the sperm will be the other legal parent unless someone else has been nominated (e.g., one of the intended parents in a female same-sex relationship). This nomination is something that the fertility clinic can assist you with during the maternity process.

If you intend to use an international surrogate, whilst the law in that country may recognise you as the legal parent of the child from conception, the law in the UK would not. This means that the transfer process is still required if you intend to live in the UK with the child and be recognised as their legal parent(s) here.

The court will only make a parental order where they are satisfied that to do so is necessary to safeguard the child’s lifelong welfare. There are certain eligibility criteria which must be met before the court can make the order:

1. The child must have been conceived by artificial insemination or embryo transfer and carried by a surrogate who is not one of the applicants. However, at least one of the applicants must be a biological parent of the child (if they are not, the appropriate route would be adoption).
2. Where the applicants are a couple, they must be married, civil partners or living as partners in an enduring family relationship.
3. The application must be made within six months of the birth of the child (although the courts have exercised discretion in practice).
4. The child’s home should be with the applicants.
5. At least one of the applicants must be domiciled in the UK, Channel Islands, or Isle of Man.
6. The applicant(s) must be over 18 when the order is made.
7. The surrogate (and spouse if applicable) must consent to the transfer. Consent must be given freely, unconditionally and with a full understanding of what is involved. The surrogate’s consent should not be given until six weeks after the birth. Where the surrogate does not consent, an application for a child arrangements order may need to be considered.
8. No money or other benefit can be conveyed to the surrogate other than reasonable expenses unless specifically authorised by the court. Under this provision, the court can authorise a compensatory payment where an international surrogate has been used in a jurisdiction which allows commercial surrogacy. In domestic cases what constitutes a reasonable expense has been widely interpreted in practice.

(The applicant(s) above are the intended parents(s).)

It will generally take around 6 – 12 months to finalise the parental order process, and typically two court hearings will be required. Once a parental order has been obtained, the parenthood of the child is permanently reassigned, and you will be the legal parent(s) of the child. The parenthood and parental responsibility of the surrogate (and any spouse) will be permanently extinguished, and a new birth certificate will be issued for the child.

The Law Commission has proposed reforms to the UK surrogacy law to streamline the process and provide better protections to all involved, but these proposals have not yet been enacted into legislation.

If you are thinking about commencing your surrogacy journey or are already on the pathway, we would be delighted to assist you and your growing family with the legal process.