Surrogacy law for same-sex parents

dad and boyGay dads conceiving through surrogacy

UK law supports gay dads conceiving through surrogacy in the same way as it does straight couples.  There are different types of surrogacy:

Gestational surrogacy – You create embryos with eggs from a donor and sperm from one of you, which are then transferred to your surrogate (who is therefore not the biological mother). Many UK fertility clinics offer egg donation treatment and can match you with a suitable egg donor; however they are not allowed to match you with a surrogate, who you will have to find yourselves.

Traditional surrogacy – Your surrogate donates her egg to you as well as carrying your child, and so is the biological mother of your child.   She might conceive through IVF or artificial insemination at a clinic or at home.

Surrogacy in the UK
Surrogacy is legal in the UK. However, the law outlaws commercially-arranged surrogacy and advertising for surrogates, so finding a surrogate can be challenging.  Once you have found a surrogate, any agreement you enter into is unenforceable under UK law (although arrangements very rarely go wrong in practice). Find out more about how the law governs surrogacy arrangements in the UK.

International surrogacy
Another option is to conceive through an international surrogacy arrangement, particularly in the USA where in many states both fathers can be named on the birth certificate, and more recently in Canada. India was previously also a popular destination, but legal changes have blocked India to gay dads; Thailand, one of the newer destinations which emerged to replace it, has now also been shut down, as have the newer destinations of Mexico, Nepal and Cambodia.

UK law does not automatically recognise your status as the parents even if you are named on a foreign birth certificate or court order. You need to check what nationality status your child has at birth (particularly if you are in a multi-national relationship), and what you need to do to bring your child home.  Your choices about who is the biological father and where you conceive might be significant, so careful planning is sensible.  Find out more about international surrogacy law and about British nationality and UK immigration law.

Legal parenthood and parental orders
Your surrogate is your child's legal mother under English law, regardless of where in the world your child is born. Who is treated as your child's father is complicated, and depends on the circumstances including biology, your surrogate's relationship status and where conception takes place.  The UK law solution is a parental order, which reassigns parenthood fully and permanently to you both, and extinguishes the legal status and responsibilities of your surrogate (and her husband or wife). It also leads to the re-issue of your child's birth certificate (or the issue of a first British birth certificate if your child is born abroad) naming you both as the parents. Same-sex parents have been able to apply for a parental order since 6 April 2010.  Find out more about legal parenthood and parental orders.

Other post birth issues
Since the parental order takes some months to obtain, you need to think about legal rights and responsibilities in the interim period before things are fully resolved. There may be issues in dealing with medical professionals and sometimes social services. You may also have questions about your employment rights as new parents and whether you have the usual rights to adoption leave.  Find out more about your legal rights in the 'limbo' period.

Your lack of legal status also makes it important for you to provide for what should happen if you or your surrogate dies so that your surrogate, her family and your child are protected. Find out more about wills and life insurance.

baby thrown in the airLesbian mums conceiving through surrogacy

Surrogacy is where a woman carries a pregnancy for you both without intending to be a parent herself. If you are planning to conceive a child with one of you carrying the other's biological child, then that is not surrogacy (we call it co-maternity or egg-swapping; some clinics call it intra-partner donation).

In practice, surrogacy is unusual for lesbian couples.  Since your surrogate will be your child's legal mother, you will need to make sure you can secure your position as legal parents when your child is born.   You will only be able to apply for a parental order (to become the legal parents) if one of you has provided the eggs.  If neither of you is your child's biological parent, then surrogacy will be much more complicated, and will need very careful legal planning.  Find out more about legal parenthood and parental orders.

If one of you is a biological parent, the law applies in the same way as it does for gay dads and heterosexual couples, and it is illegal for anyone to discriminate against you on the basis of your sexual orientation.  You may be looking for a surrogate in the UK, or have a friend or family member who has offered to act as your surrogate (find out more about surrogacy arrangements in the UK).  Alternatively you may be considering an international surrogacy arrangement.