Building Families Through Surrogacy

Evelyn Collins, Associate in the Payne Hicks Beach Family Department, sets out in her article the key legal considerations and practical guidance on surrogacy for modern families.

At Payne Hicks Beach, our Family Department are here to support families as they navigate their important chapters, be it marital breakdown, resolving arrangements for children, or family building.  

Through our Modern Family work, we advise individuals and couples on alternative pathways to parenthood. This Pride Month, we want to set out some helpful guidance on surrogacy, particularly for same-sex couples, by answering frequently asked questions. 

What is surrogacy? 

There are two types of surrogacy, both of which include a woman, known as a ‘surrogate’, carrying and delivering a baby on behalf of someone else, known as an ‘intended parent’.  

The first type of surrogacy, known as ‘traditional’ or ‘straight’ surrogacy, is where the surrogate is genetically related to the child she is carrying.  

The other form of surrogacy is ‘gestational’ surrogacy which is where the surrogate has no genetic connection to the child.  

Who can be an intended parent? 

Individuals or couples of any sexuality can be intended parents through surrogacy. Couples do not have to be married, but they must live as partners in an enduring family relationship.  

Who is the legal parent of a child born to a surrogate? 

In England and Wales, the legal mother of the child is defined in law as “the woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman”. Therefore, even if the surrogate has no genetic connection to the child, she will be treated as the legal mother of the child.  

If the surrogate is married or in a civil partnership at the time of placing in her the embryo, sperm and eggs or at the time of artificial insemination (and the spouse or civil partner is not the biological father of the child), the spouse or civil partner will be treated as the child’s other legal parent unless it can be shown that they did not consent to the above.  

If the surrogate is not married, one of the intended parents can be named as the legal parent on the child’s birth certificate, subject to some conditions. 

It is therefore crucial that intended parent(s) obtain a Parental Order to become the legal parent(s) of the child after birth, irrespective of whether the child is born abroad or in England and Wales.  

How do I become a legal parent of a child born to a surrogate? 

Intended parents must apply for a Parental Order. This is a Court order which grants legal parenthood to the intended parent(s) and extinguishes the surrogate’s legal parentage (and that of her spouse/civil partner if any). 

The criteria for a Parental Order are summarised below (with separate legal pathways for couples and individuals): 

1. The child must have been carried by the surrogate as a result of placing in her of an embryo, or sperm and eggs or her artificial insemination;  
2. There must be a genetic link to at least one of the intended parent(s); 
3. The intended parent(s) must apply for a Parental Order within 6 months of the birth of the child; 
4. The child’s home must be with the intended parent(s) and either or both intended parent(s) must be domiciled in the United Kingdom, the Channel Islands or the Isle of Man; 
5. The intended parent(s) must be over the age of 18;  
6. The surrogate (and her spouse or civil partner) must freely and with full understanding of what is involved, agree unconditionally to the making of the Parental Order, subject to caveats for those who cannot be found or are incapable of giving agreement; 
7. The above unconditional agreement cannot be given within the first six weeks of the child’s life; 
8. No money or other benefit (except for reasonable incurred expenses) has been given or received by either of the intended parent(s) for or in consideration of the making of the Order, the above unconditional agreement, handing the child over to the intended parent(s) or the making of arrangements with a view to the making of the Order, unless authorised by the court; and 
9. No previous Parental Order must have been made relating to the child, unless that Order was quashed or an appeal against that Order was allowed.  

Are surrogacy contracts enforceable in England and Wales? 

Surrogacy contracts are not enforceable in England and Wales. Parties may enter into a surrogacy agreement to record their decisions and intentions on key issues. Whilst English lawyers cannot prepare, negotiate terms within or advise upon surrogacy agreements, we can advise on the legal implications, under English law, of entering into surrogacy agreements. 

At Payne Hicks Beach, our expert family law team understands the complexities of blended families, surrogacy, adoption, co-parenting and acquiring parental responsibility, including for same sex couples. For further information, please contact Evelyn Collins, Associate in the Family Department or, alternatively, telephone on 020 7465 4300.