Advice Centre

The number of children being born through a surrogacy arrangement has soared in recent years, with celebrity couples such as Elton John and David Furnish, and Kim Kardashian and Kanye West hitting the headlines.

Surrogacy arrangements, whether they are made formally or informally and where everyone involved lives in the UK, have been regulated by the current law for over 30 years. There are strict rules on what is permitted within an arrangement and legal advice should be taken so you understand your rights during the process.

It becomes more complex if you decide to take a global approach and find a surrogate overseas. You will still need to ensure that you are recognised as the legal parent of the child when you return to the UK.

Melissa Cunningham, family lawyer with IMD Solicitors explains how different types of surrogacy arrangements work and [he/she] offers some practical advice on what everyone involved in the process should consider.

‘Whether a friend has volunteered to help or you are thinking of using a professional service, you should seek advice on the legal implications before you decide if it could be right for you and certainly before you agree anything,’ says Melissa.

‘It is highly advisable to have a plan for transferring rights from the birth mother to the new parents through a parental responsibility order or adoption. The important thing is to stay on the right side of the law. In the UK it is illegal to pay a surrogate anything other than reasonable expenses.’

Types of surrogacy

Surrogacy is when a woman agrees to give birth to a child for another person, or couple, who will then raise the child as their own. It is very important from the beginning that those involved understand as much as possible about what lies ahead.

There are three recognised types of surrogacy arrangement in the UK:

• Total surrogacy or gestational surrogacy – this is where a woman agrees to allow your egg, or that of your partner, to be implanted into her womb following fertilisation by you or your partner and then to carry your genetic child. Even though you and your partner will be the genetic parents of the child, the surrogate will still be recognised as the legal mother when the baby is born. So, you will need a legal order to transfer parental responsibility to you six weeks after the baby is born.
• Partial surrogacy – this is where a woman agrees to be artificially inseminated with the sperm of you or your partner, to fertilize her own egg. The surrogate mother and the sperm donor will be the genetic parents of the child and will usually be recognised as the legal parents at birth. This is unless the surrogate mother is married and her husband did not consent to the insemination. In this case the baby will be the legal child of the surrogate and her husband until the court orders that you and your partner can be recognised as the legal parents.
• Surrogate mother or carrying mother – this is where a woman agrees, before she becomes pregnant, to carry a child for you. The egg and sperm needed to create the baby will be donated, perhaps by the surrogate themselves and their partner. The surrogate and whoever impregnated her will be the genetic and legal parents of the child and will have full legal rights in respect of them until those rights are formally transferred to you by a court.

Agreements concerning surrogacy arrangements must be handled with care. They require careful negotiation to ensure that everyone understands what is involved. The surrogate mother and her spouse or partner, if appropriate, need to be fully committed to transferring parental responsibility to you once the baby has been born.

Many parents find it beneficial to use a family mediator or collaborative family lawyer to explore the options and reach an agreement. If this is appropriate in your case, our family lawyers can help to arrange this.

If you are thinking about entering into a surrogacy agreement or need legal advice on any other family law matter, contact Iwona Durlak on 0330 107 0107 or email info@imd.co.uk.

This is for general information purposes only and does not constitute legal or professional advice. Please note that the law may have changed since the date this post was published.