What is surrogacy?
The process by which a woman carries a child through pregnancy with the intention that at birth the child will be
transferred to another person/persons who will become the child’s legal parents and acquire parental responsibility for
the child.
Different types of surrogacy:
Partial surrogacy: the surrogate mother is also the child’s genetic mother and the sperm donor is the child’s genetic
father.
Total surrogacy: the woman carrying the child is genetically unrelated to the child. The embryo may have been created
from the following:
i.
The genetic mother’s egg and genetic father’s sperm
ii.
Donor egg and genetic father’s sperm
iii.
Donor egg and donor sperm
What is the legal status of the relationship between the surrogate
surrogate mother and the child?
Regardless of whether the surrogate mother is genetically related to the child, the surrogate mother is always treated as
the child’s legal mother unless and until the Court makes an Order to transfer legal parenthood.
What is the legal status of the surrogate mother’s husband?
The surrogate mother’s husband will be treated as the child’s legal father unless the Court is satisfied that the surrogate
mother’s husband did not consent to the arrangement.
What is the legal status
status of the commissioning father (the genetic father who donated the sperm)?
The commissioning father will be treated as the legal father ONLY if the surrogate is unmarried. Although the
commissioning father would be the legal father where the surrogate mother is unmarried he would not have parental
responsibility for the child (see below regarding the difference between legal parenthood and parental responsibility).
If the surrogate mother is married the commissioning father must apply for a parental Order to become the child’s legal
father and to acquire parental responsibility for the child.
What is the legal status of nonnon-genetic commissioning parents?
Legal parenthood and parental responsibility will only be transferred to the commissioning parents by the Court making a
parental Order.
What is a parental Order?
A parental Order confers legal parenthood and parental responsibility on the commissioning parents. The effect of the
Order is that the child is treated as their child (as in the case of an adoption order). The child is no longer legally related to
any other parents (whether genetically related or non-genetically related). A parental Order has effect throughout the
child’s life (it is not just limited to the child’s minority).
How do I apply for a parental Order?
You must meet the following criteria:
1.
The application can only be made by two people.
2.
Both applicants must be at least 18 years of age
3.
The two applicants must either be married, in a civil partnership or in an “enduring family relationship”
4.
At least one of the applicants must have provided the sperm or egg used to create the embryo (you cannot apply
for a parental Order if the child was born to a surrogate mother using both donor eggs and sperm).
5.
The child must be living with the two applicants at the time of the application
6.
At least one of the applicants must be domiciled in the UK, Channel Islands or Isle of Man
Can commissioning parents pay the expenses of the surrogate mother?
The relevant legislation governing applications for a parental Order provides that no money or benefit must be given or
received, other than for expenses, unless the court authorises such payment (authorisation may be given retrospectively).
What evidence will be needed by the Court?
Court?
Your application to the Court must be accompanied by the following documents:
1.
The child’s birth certificate
2.
Proof of the genetic link between at least one of the commissioning parents and the child (usually by way of DNA
test results)
Is there any
any time limit for the application?
Yes, the application must be made within six months of the date when the child was born. This is mandatory. The Court
does not have any discretion to extend the time limit.
Does the surrogate mother need to give consent
consent to the application?
Yes, the surrogate mother (and her husband, if applicable) must give free and unconditional agreement to the making of a
parental Order, with full understanding of the implications of the Order. The Court can dispense with the need for consent
if the surrogate (and husband, if applicable) cannot be found or are incapable of giving agreement. This agreement cannot
be obtained until the child is at least 6 weeks old.
What factors will the Court take into account when deciding whether
whether to make a parental Order?
The Court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given
or received by either of the applicants for or in consideration of the making of the parental order or the giving of consent
to the order being made or handing the child to the applicants or the making of arrangements with a view to the making
of the order (unless this has been authorised by the Court). The court does have discretion to provide retrospective
authorisation of payments made to the surrogate.
The paramount consideration of the Court must be the child’s welfare, throughout their life and the Court must have
regard to a welfare checklist. A parental order reporter will be appointed by the Court to investigate and to prepare
recommendations for the Court regarding the child’s best interests.
What if I entered into a surrogacy arrangement abroad or the child was born abroad?
There are no international agreements in place dealing with surrogacy so any orders made abroad are not recognised or
enforceable in the UK. Regardless of any arrangements made abroad the commissioning parents must always therefore
apply for a parental Order in the UK Court to become a legal parent. The UK Courts will still scrutinise any payments to
decide it they are reasonable expenses and then to consider it they should be retrospectively authorised or if an order
should be made even if the payments are unauthorised in accordance with the child’s best interests.
If you are considering surrogacy involving any international element it is crucial that advice should always be sought from
specialist practitioners in the UK and in the relevant foreign countries (where parties have been living, are registered as
citizens or intend to live with the child).