Is Surrogacy Legal In The UK?

For many couples desperate to have a baby, surrogacy is an attractive option, depending on the circumstances. But what exactly is surrogacy? And is it legal in the UK? What if the birth mother refuses to hand over the child? This article provides answers to these questions and more.

What is surrogacy?

Surrogacy is where another woman carries a child in pregnancy, with the intention of handing the child over to a third party when he or she is born.

A surrogate pregnancy can be total or partial. In a total surrogate pregnancy, the commissioning mother donates an egg that is fertilised by sperm from the commissioning father before being implanted in the carrying mother (the surrogate). The commissioning couple are therefore the genetic parents of the child.  In a partial surrogacy, sperm from the commissioning father is artificially inseminated into the carrying mother, meaning the carrying mother is a genetic parent of the baby.

Is surrogacy legal in the UK?

Surrogacy is not illegal in the UK but a surrogacy contract is not enforceable.  Under UK law, the woman who gives birth to a child is considered his or her mother; therefore, regardless of any agreement, if she changes her mind and decides to keep the baby, she is legally entitled to do so.  She can transfer her parental rights to another by signing a Parental Order.

What if I have paid for the surrogate’s expenses? 

A surrogacy contract remains unenforceable, even if you have paid for the mother’s expenses.  It is illegal in the UK to pay another woman a fee for acting as a surrogate, you may only pay for expenses relating to the surrogacy.

How does a Parental Order work?

Upon birth, the surrogate is considered the baby’s legal parent, along with her spouse.  

A Parental Order assigns parental rights from one person to another, similar to an Adoption Order.

For a Parental Order to be granted, the ‘intended parents’ must prove that at least one of them is biologically related to the baby, lives in the UK and they are in a serious, stable relationship.

The conception of the newborn must have also taken place artificially and the surrogate must provide full and free consent to the Parental Order.  Full and free consent cannot be given until the child is at least six weeks old.

Can unmarried and gay couples be granted a Parental Order?

Yes, and this has been the case since April 2010.

Surrogacy is an emotionally fraught process and carries risks, especially in terms that the surrogate mother may not be willing to hand over the baby she has been carrying for nine months.  It is therefore imperative that all parties to a surrogacy, receive independent legal advice.  

You can find an expert family law solicitor who can advise you on surrogacy agreements by searching through Solicitors Guru today.