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Family disputes
Donor conception/ co-parenting
Fertility treatment
Transgender family law

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Surrogacy for mum-dad parents

There are different types of surrogacy for mum-dad intended parents: Gestational surrogacy - If you have embryos in storage or are able to create embryos through IVF treatment (either using your own gametes or donated eggs or sperm), they can be transferred to a surrogate, who then carries a child she is not biologically related to. Traditional surrogacy – Your surrogate donates her egg to you as well as carrying your child. She might conceive through IVF treatment or artificial insemina...

Surrogacy for gay dads

UK law supports gay dads conceiving through surrogacy in the same way as it does straight couples.  It is against the law for anyone to discriminate against you on the basis of your sexual orientation. 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 ca...

Surrogacy for single dads

English law does not prohibit single dads having children through surrogacy (and we work with many who do it), but there is no legal framework. This can make things difficult because: There is no straightforward way of sorting out the UK legalities to extinguish the surrogate’s responsibilities and secure sole parenthood. It is harder to find a surrogate in the UK. If you are conceiving with a surrogate in the UK or abroad, it is critical to ensure that you will be your child&rs...

Surrogacy for single mums

UK law does not prohibit single mums from having children through surrogacy, but in practice legal complications make it difficult. The surrogate, rather than you, will be the legal mother of your child (even if you are the biological mother and even if you are named as the mother on a foreign birth certificate). Find out more about UK legal parenthood. If your child is born outside the UK, securing British nationality and the documentation you will need to travel home could be...

Surrogacy for surrogates and their families

It is legal to be a surrogate in the UK.  The only aspects of surrogacy which are illegal are advertising (you cannot advertise that you are willing to be a surrogate) and commercial brokering (only non-profit organisations can match surrogates with intended parents in the UK).   Find out more about the UK framework for surrogacy. It is not illegal to receive payments for surrogacy in the UK (this is a common misconception) although if you are paid more than reasonable expenses t...

UK parenthood law after surrogacy

Under UK law, the legal mother of a child born through surrogacy is always the surrogate. Married surrogates If the surrogate is married at the time of conception, her husband is the legal father unless it is shown that he did not consent to the conception.  The same rule now applies to make a same-sex partner the other legal parent, if the surrogate is in a civil partnership or same-sex marriage at the time of conception. It is not possible for a spouse to 'opt out' of being the other pa...

Parental orders: what they do

Parental orders reassign parenthood fully, giving parenthood and parental responsibility to the intended parents, extinguishing the parental status of the surrogate and her spouse permanently, and conferring British nationality (where relevant). Parental orders also trigger the issue of a new (or first UK) birth certificate for the child.  The child's original UK birth certificate (if any) will be kept by the General Register Office as part of the Parental Order Register, and can be access...

Parental orders: what the court assesses

To obtain a parental order, the applicants (intended parents) must satisfy the court that they meet all the criteria set out in the legislation: The conception must have taken place by embryo transfer or artificial insemination, and the child must have been carried by a surrogate One or both of the intended parents must be the child's biological parent The intended parents must be married, civil partners or living together as partners in an enduring family relationship The intended parents...

Parental orders: how the process works

Intended parents apply for a parental order by completing court Form C51 and submitting it to their local family court (or the Central Family Court in London in international cases) within six months of the birth. The court will 'issue' (stamp) the application and should send a copy, together with a Form C52 (acknowledgement) to the intended parents.  The intended parents must give this to their surrogate (and her husband), who should sign and return the C52 Form to the court.&n...

Parental orders: international surrogacy cases

A parental order is needed following international surrogacy to secure parentage in the UK (find out more about what parental orders do).  Applications are typically heard before specialist judges in the High Court, and detailed evidence is required (find out more about the court process).  The criteria the court has to assess are the same as with any parental order application (find out more about what the court assesses).  However, there will be more detailed scrutiny, with par...

Alternatives to a parental order

A parental order is the legal remedy designed for surrogacy situations, so alternative options should be considered only as a last resort, and remain largely untested.  However, for some parents (including single parents and those who have missed the six month deadline) parental orders are not available. Adoption An adoption order is the closest alternative to a parental order.  Like a parental order, it extinguishes the surrogate parents’ responsibilities and gives permanent p...

Surrogacy and UK birth registration

If the child is born in England or Wales, the birth will be registered under the law of England and Wales.  Only people who are the legal parents of the child can be registered on the birth certificate.  Find out more about legal parenthood after surrogacy. The surrogate needs to attend the birth registration, as she is the legal mother and is responsible for registering the birth.  She will be registered as the mother.  If she has a spouse or civil partner who is the othe...

UK fertility clinics and surrogacy

Fertility treatment for surrogacy which takes place in the UK is regulated by the Human Fertilisation and Embryology Authority.  The HFEA Code of Practice sets out the obligations of UK fertility clinics. Legal parenthood Fertility clinics have to give patients information about who the legal parents will be and who will have parental responsibility following conception at a UK fertility clinic.  In 2013, we advised the HFEA and helped them to update their guidance.  It is now cl...

The role of CAFCASS in children disputes and parental order applications

The Child and Family Court Advisory and Support Service (CAFCASS) is a government body managed by the Ministry of Justice, and is part of the family court system. Its role is to provide an independent assessment and reporting function to assist judges hearing children cases. CAFCASS officers are qualified to work with children, and often have a social work background. Preliminary safeguarding checks on the parties to a case will be carried out by CAFCASS when an application is first made. CAFCA...

NGA publication: The HFEA gets into gear on surrogacy (Bionews, Oct 2013)

The HFEA updated its Code of Practice guidance on surrogacy in October 2013 (following advice from NGA). Our article, published in Bionews in May 2013, explains the changes.

NGA publication: Two mums and a baby (INUK, Autumn 2009)

Natalie's article, published in the Infertility Network UK magazine's for fertility patients in autumn 2009, looks at the changes to the law for lesbian couples conceiving together, which came into effect in 2009, allowing two women to be named on a child's birth certificate for the first time.

NGA publication: Re X and Y, a trek through a thorn forest (co-written with Lucy Theis QC, now Mrs Justice Theis) (Family Law, March 2009)

This article, published in Family Law in March 2009, explains the case of Re X and Y (2008) (the very first UK case to ratify an overseas surrogacy arrangement) and its significance. It was co-written by Lucy Theis QC (now Mrs Justice Theis, the judge of the High Court responsible for deciding international surrogacy cases) with whom we represented the parents in the case.

Court form - C51 (parental order application form)

This is the court form you will need to complete and send to the family court if you wish to apply for a parental order

Court form - C52 (parental order acknowledgement form)

This is the court form which is completed and signed by a surrogate (and her spouse) to confirm that they have been sent a copy of the parental order application

Resource – CAFCASS guidance for parental order reporters

This guidance published by the Child and Family Court Advisory and Support Service is the reference point for parental order reporters.

NGA publication: Stonewall Gay Dads Guide

Gay rights charity Stonewall has produced a guide for gay dads starting a family. We were proud to help write the sections on surrogacy and co-parenting.

UK court decision: JP v LP (2014) - parents through surrogacy separated, court could not alter parenthood

A mother and father through surrogacy separated shortly after the birth and missed the deadline to apply for a parental order. The court was unable to resolve their legal status, leaving the child a ward of the court and leaving the surrogate as the legal mother.

UK court decision: AB v DE (2013) (also reported as Re C (2013)) – international surrogacy, Russia, payments, welfare, immigration

In the UK's first Russian surrogacy case, a British couple (a woman in her mid-sixties and a man in his 40s) initially applied for a British passport without disclosing the surrogacy context before making a proper application for British nationality registration. The court was satisfied that the mother's age and the incorrect initial immigration application should not prevent the making of a parental order in their favour. We acted for the parents in this case.

UK court decision: J v G (2013) – international surrogacy, USA, payments, legality of UK surrogacy agency, offences

A British gay couple were matched with a Californian surrogate by the British Surrogacy Centre. The UK court agreed to authorise the highest ever payment for overseas surrogacy ($56,750 plus surrogate's expenses) and the decision was published to send a message 'loud and clear' that parents through US surrogacy need a parental order. It also highlighted criminal restrictions in the Surrogacy Arrangements Act 1985 and a copy of the judgement was sent to the relevant authorities to investigate.

UK court decision: AB v SA (2013) - domicile, Indian surrogacy, non-UK parents

A non-British gay couple with a son born through surrogacy in India was granted a parental order. The court decided that, despite having settled recently in the UK, the couple had formed sufficient intention to make the UK their permanent home and were 'domiciled' in the UK. We acted for the parents in this case.

Court decision: Re D and L (2012) – international surrogacy, India, surrogate consent

A UK same-sex couple was awarded a parental order without the consent of the Indian surrogate mother after she disappeared. This was the first time a parental order had ever been granted without the surrogate's consent, and Mr Justice Baker set out the limited circumstances in which the court could dispense with consent if the surrogate could not be found. We acted for the parents in this case.

Court decision: Re IJ (2011) – international surrogacy, Ukraine, immigration

A British couple encountered legal and immigration difficulties after conceiving with a married surrogate in the Ukraine. The court made a parental order, and published its decision to highlight the continuing lack of information for parents in international surrogacy cases. We acted for the parents in this case.

UK court decision: Re L (2010) – international surrogacy, USA, payments

A British couple engaged a US surrogate mother in Illinois. Building on the previous guidance in Re X and Y (2008) and Re S (2009), this was the case in which the High Court said that the child's welfare should be the court's 'paramount consideration' and that a parental order should be denied only if the case was one of the 'clearest abuse of public policy'. The case attracted significant media interest, as it gave permission to commercial surrogacy

Court decision: Re S (2009) – international surrogacy, USA, payments

A British couple engaged a surrogate mother in California who was paid a commercial sum of $23,000. In the second UK court decision authorising an international surrogacy arrangement, the UK court expanded on its thinking in Re X and Y (2008), made clear that the Californian court order on parentage was not recognised and set out further guidance about the approach the court should take.

UK court decision: Re X and Y (2008) – first UK authorisation of an international surrogacy arrangement, Ukraine, payments

A conflict between Ukrainian and UK law over parenthood meant that twins born through surrogacy to a British couple in the Ukraine were 'stateless and parentless'. In the very first UK court decision authorising an international surrogacy arrangement, the UK court made a parental order, authorised the payments made, and set out the approach the court should take to international surrogacy. Our team (whilst at a previous law firm) acted for the parents in this case.

Resources: Human Fertilisation and Embryology Act 2008

The Human Fertilisation and Embryology Act 2008 deals with parenthood law in surrogacy cases. Sections 33 to 53 set out who are treated as the legal parents when a child is born. Section 54 sets out the rules on parental orders.