"Conceiving using a surrogate mother can be a very emotional and anxious journey. The law on surrogacy is technical and complex and it is therefore vitally important that the Intended Parents and the surrogate mother receive clear advice as to how the law applies to them prior to entering into any agreement or insemination.
Modern surrogacy laws also revolutionised parental rights for unmarried and same sex couples, allowing non-biological parents on a child's birth certificate as a legal parent. As expert surrogacy lawyers, our firm offers specialist surrogacy legal advice, helping couples understand both how the law works and how it will affect your specific circumstances. We explore more common questions below, but if it does not address all of your questions then please contact me or the dedicated team here for more information."
- I have found a surrogate, do I need a formal agreement?
- What if we use a surrogate abroad?
- Am I allowed to pay the surrogate mother?
- As a gay father can my civil partner/husband have parental rights?
- Can I have a surrogacy arrangement if I am single?
- Is it vital that we register within 6 months of the birth?
- Can I protect my surrogate child in my Will?
If you proceed without a surrogacy agreement, known as an informal arrangement, you as the donor or the intended parent can be in a vulnerable position. The likely scenarios that can arise giving justification to a formal process can include: the surrogate deciding to keep the baby herself; refusing to give you contact; playing an active role in the child's upbringing even though she agreed otherwise etc. A formal arrangement sets out all the agreed terms before anything has been done. Although this is not binding or legally enforceable, it will clearly set out your intentions and the family courts are showing some sympathy to these arrangements. Solicitors are not able to draft or negotiate these arrangements for you.
Once the baby is born you will have six months to apply for a Parental Order. When the Parental Order is granted, a new birth certificate will then be issued showing the two intended parents rather than the surrogate mother and you will both acquire all the rights and responsibilities for the child.
The Human Fertilisation and Embryology Act permits couples to have an arrangement with a surrogate mother overseas and it does permit you to acquire parental rights recognised in the UK. However, if you pay the surrogate more than reasonable expenses then you can expect the court to scrutinise your application to ensure no abuse of public policy takes place, before they can grant you the Parental Order.
You are permitted to pay "expenses reasonably incurred", such as compensation for time off work, medical bills and living or care expenses. Anything that can be seen as simply a transactional fee can cause you issues at court in obtaining parental rights. However, recent High Court case law has challenged this and stated that the welfare of the child should take precedence before refusing a Parental Order because of what has been paid.
If you both follow the due process for a Parental Order and apply together, your civil partner/ husband can be recorded on the birth certificate as the other parent and will acquire full parental rights. If done correctly and within 6 months of the baby's birth, the certificate is reissued with these details.
Sadly, even if you are a biological parent the UK can decide not to grant you a parental order and recognise you as the UK legal parent. This can cause you difficulties since the surrogate will retain her legal rights over the child in this instance. If you use a surrogate abroad you may get a birth certificate with you as named parent but sadly in the UK this is not valid and you may face succession and parental responsibility issues. You should seek specialist legal advice to ensure you are fully aware of your rights and the risks.
The six month time limit has recently been reviewed by the President of the Family Division. While reiterating that statute provided a 6 month bar to ensure people made swift applications, where there is a very good reason then there may be scope to apply outside the time. However, it remains the best position to take all possible steps to apply within the six month timeframe to avoid having to complicate your case and rely on the goodwill and case law to protect the intended parent’s rights.
It is very important that as intended parents you update your Wills in case anything goes wrong during the surrogacy arrangements. You should cover the payment of expenses required for the surrogate and appoint guardians in the event of your death. If you can agree this, the surrogate should have a Will appointing you as the intended parents as the baby's guardian. We would also suggest you consider updating life insurance policies.
Surrogacy is a long, expensive and scary process especially when we were flying to and from the USA. Andrew and the family team really made us feel as ease, they knew their stuff and the court seamed on their side. They got us everything we needed swiftly and within the budget set. Cannot recommend or thank them enough.
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We are surrogacy lawyers covering the City of London, Central London, Tower Hamlets, Islington, Hackney, Richmond up Thames, Kensington & Chelsea, Hammersmith & Fulham, Westminster, Camden, Harrow, Haringey, Southwark, Lambeth, Croydon, Bromley, Bexley, Havering, Redbridge, Waltham Forest, Enfield, Barnet, Hillingdon, Ealing, Hounslow, Greenwich, Lewisham, Wandsworth, Merton, Sutton, Kingston upon Thames, Barking & Dagenham, Newham and Brent.
Also we have and do handle surrogacy outside of London: Surrogacy lawyers for Wales; Cardiff & Swansea and surrounding areas. Surrogacy legal experts in Leeds, York , Manchester, Bristol, Chester, Cheshire, and Birmingham.