Surrogacy for mum-dad couples
Surrogacy is a family building option for couples who cannot have a child by more conventional means. Your options in practice are determined by the legal framework for how surrogacy is organised and arranged in the UK and abroad. The law also governs who are treated as the legal parents of your child, your child's nationality and immigration status, and the process that you need to go through after the birth to secure your family's position.
Types of surrogacy
There are different types of surrogacy:
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If you have embryos in storage or can create them using your own eggs and sperm, you can conceive your own biological child through a gestational surrogacy arrangement in which your surrogate mother carries your baby. Alternatively, you can use eggs (or more rarely sperm) from a third party donor, who might be a friend or relative, a donor provided by a UK clinic, or a foreign donor if treatment takes place outside the UK. Gestational surrogacy will involve IVF treatment in the UK or abroad.
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You can conceive through a straight surrogacy arrangement, where your surrogate mother donates her egg to you as well as carrying your child. This can involve IVF treatment or artificial insemination at a clinic or at home.
Surrogacy in the UK
Surrogacy is legal in the UK and often much more achievable than people realise. Some couples conceive with the help of a friend or relative acting as their surrogate; others make contact with a surrogate mother through one of the UK's non-profit making surrogacy agencies (or sometimes independently).
Commercially arranged surrogacy is outlawed and it is an offence to advertise that you are looking for a surrogate mother. Surrogacy arrangements are also unenforceable under UK law, although in practice they very rarely go wrong. For more information about how surrogacy is regulated in the UK, see our page Surrogacy in the UK.
International surrogacy
Another option is to conceive through an international surrogacy arrangement, with common destinations including certain US states, the Ukraine and India. Although foreign surrogacy arrangements can be easier to arrange at the outset and have some advantages, the legal issues may not be as straightforward as they seem.
English 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, and what you need to do to secure the right paperwork to come home across international borders. You also need to take steps to become the legal parents of your child for the purposes of UK law, as well as complying with the law in your destination country. The good news is that this is an increasingly well trodden path - we have helped make the case law on this and have many years of experience successfully helping parents secure their legal position after international surrogacy arrangements.
Things can get more complicated if you are in a multinational relationship, are not British, or are British and living or working outside the UK. You need to ascertain your personal status, your eligibility to apply to the UK court, the impact on your child's nationality status, and how best to manage the legal issues in all the countries with which you are connected. Careful planning is sensible before you embark on your surrogacy journey.
Read our pages on international surrogacy law to find out more.
Legal parenthood and birth certificates
Your surrogate mother is your child's legal mother under English law, regardless of where in the world you conceive and regardless of what any foreign birth certificate says.
Who is treated as your child's father/second parent is complicated, and depends on the circumstances, including biology and your surrogate's relationship status. In some circumstances, the biological father might have no legal status under English law. It is also now legally possible for English law to treat an intended mother as the child's second legal parent from birth in certain circumstances.
For more information on how the law applies, see our page: Who are the parents of a surrogate born child? or contact us for legal advice.
Securing your family's legal position
Wherever in the world your child is born, the English law solution for surrogacy situations is a parental order. A parental order reassigns parenthood fully and permanently to you both, and extinguishes the legal status and responsibilities of your surrogate mother (and her husband or partner). It also leads to the reissue 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. Married couples have been able to apply for a parental order since 1994 and unmarried couples since 6 April 2010. For more information about parental orders, including the application process and the criteria, see our page: Parental orders and other options.
It is also important to consider the interim steps you can take to protect your family until your parental order is granted, including wills, life insurance and parental responsibility. For more information about wills, see our page: The importance of a well-drafted will.
How we can help
We are the UK's leading experts in UK and international surrogacy law. We have represented hundreds of families created through surrogacy in the UK and abroad, and acted successfully for the parents in leading High Court international surrogacy cases Re IJ (2011), Re L (which made front page headlines in December 2010) and Re X and Y (the first English case to ratify a foreign commercial surrogacy arrangement in 2008 which set the law for everyone else following after) as well as various other cases. We are the only solicitors in the UK who deal with surrogacy cases every day, and who have real experience of seeing many international surrogacy cases all the way through from start to finish.
Find out more about our surrogacy law services.
