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Surogacy Law

Surogacy Law

SKU: 3.71
  • Advice

    It is important to understand that surrogacy arrangements in the UK are legislatively unenforceable. Therefore, it is strongly encouraged that written agreements are created to specify the details of the arrangement and any limitations within it. Lestons, like all other UK law companies, are prohibited by law from drawing these up, as such you should consider every eventuality in constructing the agreement.


    One important aspect is that every party needs to have a mental capacity check, this is vital to ensure that all parties are mentally competent, you can get these checks done via your GP. It is illegal to advertise that you are seeking a surrogate or to advertise your services as a surrogate. The service and all transactions must be facilitated by an agency or by friends and family.


    Within UK law, the surrogate will be the legal mother of the child. If they are married or in a civil partnership, their partner will be the other parent. This still applies even if the intended parents are the full biological parents of the child. For the intended parents to gain legal parenthood, they must apply for a parental order in the courts. However, in some cases, an adoption order may be used. The intended surrogate transfers parenthood of the child to the intended parent via a parental order. A new birth certificate with their names will be issued.


    How much can a UK surrogate be paid?

    Surrogacy law in the UK prevents profit. However, when the original agreement is drawn up, couples and surrogates may agree for the pregnancy costs to be covered. The main rule is that the surrogate must not financially profit from the service.

    Typical costs may include: -

    • Housing, if the couple wishes for the surrogate to move house;
    • Transport costs, such as to GP, scans, antenatal and perinatal visits;
    • Maternity clothing;
    • IVF treatments (if applicable); and
    • Lost earnings during the period of pregnancy.

    These must be evidenced through receipts and invoices, as the court will need to verify them.


    Is surrogacy risky?

    While the agreement is in writing, it is not legally binding as one party can choose to simply ignore it. Using an agency can help with mediation, but this isn't always successful. Therefore, it is imperative to have good lines of communication and clear rules from the onset. 


    How do I obtain legal parenthood? (Eligibility)

    Several requirements must be met within a surrogacy arrangement for a parental order to be issued. These must be understood before conception.

    These requirements are:

    • The intention of bearing the child must always have been to transfer parenthood once the child is born;
    • Only couples who are married, in a civil partnership or can prove an enduring relationship can apply for parental orders;
    • All parties must be over 18;
    • The application for the parental order must be filed within the first six months of the child's life (there are cases where judges have allowed this rule to be ignored);
    • The child must be residing within the UK (including the Channel Islands and the Isle of Man) with the intended parents at the time of the application;
    • The court must be satisfied that the surrogate (and any other people who have parental claim over the child) are happy with transferring legal parenthood;
    • The court must be satisfied that the transaction has met the no-payment rules of surrogacy in the UK; and
    • Despite these rules, exceptions have been made to protect the child's best interests.


    How do I obtain legal parenthood? (Process)

    This process will need to go through court. It will involve the initial application, an assessment by a social worker from CAFCASS, a written statement filed by the intended parent/s and one or more court hearings in the family court. To complete the process, the court must be satisfied that the intended parent(s) meet the criteria and will be able to ensure the child's lifelong physical and emotional welfare.

    At the end of the process, the court will most likely issue a parental order which transfers legal parenthood to the intended parents, meaning the surrogate no longer has any parental legal claim or responsibility towards the child.


    Can I use international/cross-border surrogacy?

    Cross-border or international surrogacy is not illegal in the UK and could be considered as an option if you cannot find a UK surrogate. However, the child would be a citizen of the country of birth. Many couples, who take this option, therefore, have the surrogate give birth in the UK. The rules regarding the legal process explained in the section above would still apply. There is typically a charge for this service, along with any other associated expenses. Because this activity is complicated, we strongly suggest you seek legal advice before contemplating such action.

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