- Surrogacy is legal in the UK, but if you make a surrogacy agreement it cannot be enforced by the law. The legal parents at birth.
- A Parental Order transfers parentage from a surrogate mother to the intended parent or parents. This is a process that can only happen once the baby is born and is subject to conditions.
- Couples or indeed single people contemplating a surrogacy arrangement should take legal advice before they enter into the arrangement
Until relatively recently, surrogacy had an aura of taboo about it. Nowadays it seems there are media reports connected with surrogacy most days. Surrogacy seems to be the leading way for celebrity couples in particular to grow their families.
With that in mind I thought it might be useful to remind ourselves what the law relating to surrogacy actually is in the UK at the moment.
Many of these celebrity couples live abroad and indeed many English couples feel their only option is to go abroad if they want to embark upon a surrogacy arrangement. This is not correct.
Surrogacy is alive and well in the UK. Any UK couple contemplating surrogacy should first explore their UK options as going abroad can be both extremely costly and bring with it additional problems e.g. immigration issues which obviously don’t feature in a UK arrangement.
Surrogacy in the UK is perfectly legal. There is a clear legal framework which allows couples to enter into surrogacy arrangements, and for children born as a result of the surrogacy arrangement to be recognised as the legal children of their intended parents and not the surrogate.
Commercial surrogacy is however banned in the UK. The legal framework which is in place needs to be adhered to scrupulously to avoid falling foul of the regulation and unwittingly crossing into an area where the surrogacy arrangement could be deemed commercial and therefore illegal.
The current law provides that the intended parents must apply to the Court for a Parental Order after the baby is born in order to transfer legal parentage from the surrogate to themselves.
At the moment only couples can apply for a Parental Order meaning single people are unable to transfer legal parentage in this way. However, it is anticipated this will change very soon with the government having drafted legislation to permit single people to apply for Parental Orders.
The draft legislation anticipates that any single person who has already had a baby using a surrogacy arrangement will have 6 months from the introduction of the new legislation to apply for the Parental Order and thus transfer legal parentage.
This is obviously a great step forward and long overdue. However, both single applicants and couples must remember that there must be a genetic link between them and the baby if a Parental Order is to be made. Thus, in the case of a single female applicant, it would have to be her egg that was used by the surrogate. By the same token, a single male applicant would have to ensure his sperm was used by the surrogate.
The currently drafted legislation does not permit single people or couples to use embryo donation (i.e. where they are not genetically connected to the baby) within a surrogacy arrangement and secure a Parental Order.
To summarise then, surrogacy is very much alive and well and legal in the UK provided the legal framework is strictly complied with.
Couples or indeed single people contemplating a surrogacy arrangement should take legal advice before they enter into the arrangement to ensure that they do not unwittingly find themselves in a position where the arrangement is subsequently deemed illegal by the Court and/or unable to effect a transfer of legal parentage of the baby from the surrogate to themselves after the baby is born.
Properly followed, the legal process is clear and straight forward but once mistakes in the process have arisen, they can be very difficult to remedy.