Susan J Williams Partner and Head of Family Department
What are the legal implications surrounding surrogacy?
Please note: this article was originally published in January 2020 and updated in July 2022 accordingly.
In recent years, surrogacy has become more prominent, openly talked about and accepted as an opportunity for different family structures to be able to have a child of their own.
Surrogacy is where an individual or a couple, whether they are a heterosexual or same sex couple, nominate another woman to give birth to a child on their behalf.
Over the last seven years, the recorded number of children born through surrogacy has more than doubled.
In the majority of cases, surrogacy unfolds without any difficulties and it is a smooth process for all, with the overwhelming feeling that the act of surrogacy is a gift from the surrogate to the intended parents for them to experience having their own child.
However sadly, there are examples where both the intended parents or the surrogate mother are treated poorly giving rise to serious concerns to all involved including the child.
Surrogacy gives rise to ethical and legal issues, but at the heart of it, is the wellbeing of the child which has to come first.
Surrogacy in the UK is regulated with rules and laws about what is and isn’t permitted. For example, it is not permitted for a surrogate to be paid for having a child, although, reasonable expenses such as medical fees can be paid for. Other examples are that Surrogates cannot advertise that the offer surrogacy as a service and whilst those involved may set out or record the arrangements in writing, any such record is not legally binding in the UK.
When the child is born the surrogate mother is the legal parent. To transfer the legal parenthood an application to the court for a parental order has to be made and when it is granted the child becomes the legal child of the intended parents and the surrogate at that point loses all legal rights in respect of the child.
This can be a long process during which time the surrogate retains parental responsibility for a child that is being brought up by the intended parents. This is generally regarded as unsatisfactory and it is one of many issues that is being considered for reform following a Law Commission investigation into Surrogacy and making the whole process fit for purpose.
Surrogacy brings joy and happiness to individuals and couples who long for a child of their own, however it also can bring with it legal issues that have to be dealt with.
Ince provides a full service for advising and representing clients who are either, wanting to become parents or are the surrogate and are considering surrogacy or are already going through surrogacy. Whatever your circumstance we have a specialist solicitor who will support, advise and represent you as you navigate the issues surrounding surrogacy.