Surrogacy – Do we have to involve lawyers?

Surrogacy in the UK is built on a foundation of trust and selflessness, with surrogates offering the chance for intended parents to experience the joy of parenthood when they’re unable to carry a child themselves. While surrogacy might seem like a personal arrangement that can be managed privately, the legal complexities involved are significant and cannot be overlooked. Understanding surrogacy law and the necessary legal procedures will be crucial for everyone from the very beginning.

Eleanor Tanner is a specialist solicitor here at K J Smith with extensive expertise and an avid interest in surrogacy law. She recently presented on the topic to the Ovom Clinic, a team of world class fertility specialists. In this blog, we’ll summarise Eleanor’s key points, explore why early legal advice is essential and discuss the vital role experts like her play in ensuring a smooth and legally compliant surrogacy process.

Understanding surrogacy law in the UK

Before looking at all the legal aspects of embarking on a surrogacy journey, Eleanor would always want to emphasise how vital it is to establish a relationship between the intended parents and the surrogate which is based on trust and mutual understanding.

Surrogacy is an arrangement whereby a woman carries a baby for someone who’s unable to conceive or carry a baby themselves for medical or physical reasons. Two Acts of Parliament regulate surrogacy, the Surrogacy Arrangements Act, 1985 and the Human Fertilisation and Embryology Act, 2008.

Legal parentage and parental responsibility

A legal mother is defined as the woman who has carried the child and given birth. So, a surrogate is the legal parent at birth, even if she has no genetic link to the child.

A legal father is the person married to or the civil partner of the legal mother at the time fertility treatment is undertaken, or a man who has consented to being the legal father at the time fertility treatment is undertaken. If the surrogate is unmarried/not in a civil partnership at the point of the fertility treatment, then legal fatherhood will depend on whether conception takes place through a licensed clinic.

Parental responsibility is different from legal parentage. It is defined in the Children Act 1989 as: “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and [their] property”.

For a surrogate to transfer responsibility for the child to the intended parents, a ‘Parental Order’ must be obtained from the court after the child is born. This provides the intended parents with both legal parentage and parental responsibility, meaning they are then recognised as the legal parents for all purposes, including inheritance. The order removes the parental responsibility of the surrogate and that of their spouse or civil partner (if applicable).

Without a Parental Order, intended parents will not have authority to make decisions over important matters such as the child’s education or health. Parents may also face complications if they divorce, separate or one passes away, so the Parental Order is a key stage in the process. It is a good idea to seek legal advice to ensure it is done correctly.

Legal Financial Considerations

Surrogacy in the UK is not a commercial arrangement, it is something a woman offers to do out of compassion or sympathy for couples who cannot carry a baby themselves. It is strictly non-commercial, which means no money can change hands, except for the reimbursement of a surrogate’s expenses.

Expenses may include, but are not limited to medical bills, including for appointments, medication and travel expenses as well as maternity clothing.

The courts scrutinise the payment of a surrogate’s expenses, so intended parents will occasionally have queries about what constitutes ‘reasonable’ expenses. It’s important to note that whilst there is no upper limit on the sum that can be reimbursed, expenses must:

• relate to the pregnancy
• be reasonable in the particular circumstances
• be justifiable when presented to the Court

If you’re unsure or feel uneasy about anything being claimed, it’s always wise to err on the side of caution and you may wish to consider whether to seek legal advice.

What are the main steps in the surrogacy process?

The process has several steps, each involving legal requirements and detailed record-keeping, so it can understandably all feel rather daunting. Calling upon an experienced lawyer like Eleanor means that everyone involved will be supported and guided through the various steps and this should relieve much of the stress or anxiety, allowing the intended parents - and the surrogate - to focus on the joyous outcome at the end!

1. Conception and pregnancy

• Egg donation, fertilisation, embryo transfer or insemination takes place.
• The surrogate undergoes regular antenatal care and medical check-ups.

2. Post-birth

• The child is born and the surrogate is the legal parent.
• Intended parents need to make the Parental Order application within six months of the child’s birth. The surrogate’s consent must be given, but can only be validly given 6 weeks after the child is born.
• Court considers the application and ensures all parties consent and that the welfare of the child is being prioritised.
• The Parental Order is issued, typically within a year post-birth. Full parental rights transfer to intended parents (and the surrogate’s legal rights and obligations end).
• Birth certificate is reissued with the intended parents’ names.

You can find out more about the surrogacy pathway in this helpful guidance on the uk.gov website.

The Parental Order and the importance of early legal advice

Whether you’re using a domestic or an international surrogate, the Parental Order is a vital part of the process in order to be regarded as the legal parents of the child under UK law. Several legal criteria must be met and the application follows a set process.

Early legal advice, before fertility treatment, is essential, not only to avoid potential pitfalls, but to ensure the process is legally compliant from the outset and that intended parents keep the meticulous records required by the court to obtain the Parental Order.

It’s important to note that some fertility clinics require written evidence that both the intended parents and the surrogate have sought early legal advice before fertility treatment even begins.

It’s a common myth that surrogacy arrangements end when the baby is delivered, but, as Eleanor explains, the formal legal process of applying for a Parental Order and obtaining the surrogate’s consent cannot begin until six weeks after the baby arrives. In the UK, it may take several months after the baby arrives to finalise matters.

What are the legal criteria for a Parental Order?

This is a very important step for the intended parents to become the legal parents of the child and there are several criteria which apply:

• Intended parents may apply as a single applicant or as a couple.
• Couples applying must be married, in a civil partnership, or living as partners in an ‘enduring family relationship’.
• The intended parent(s) must be at least 18 years old.
• The intended parent(s) cannot carry the child and conception must have taken place artificially.
• At least one intended parent must be domiciled in the UK, the Channel Islands, or the Isle of Man.
• At least one intended parent must have provided their gametes (sperm or egg) to create the embryo. (If both the egg and sperm are donated, the adoption process applies instead.)
• No money can be exchanged other than for reasonable expenses.

If you’re unsure of whether you meet the criteria for a Parental Order, you should consult an expert surrogacy lawyer.

Why is consent so important?

Consent is a statutory requirement for the Parental Order to be granted. It must be obtained from the surrogate – and the second legal parent where applicable – and can’t be given until at least six weeks after the child’s birth. It must be given freely and in good faith.

Exceptions are limited but include circumstances when a surrogate is incapable of giving consent or cannot be found. In the latter case, the court must be shown all the steps taken to locate the surrogate.

Eleanor says that it’s very rare for a surrogate to change their mind and not to give consent for the Parental Order, but intended parents should be mindful of the fact that without it, a Parental Order will not be granted.

Applying for a Parental Order

1. The Application needs to be made on Form C51 at the applicant’s local court within six months of the child’s birth. The child must be living with the intended parent(s) in the UK.

Intended parent(s) should be named, alongside the surrogate – and their spouse if they have one – on the application. If the pregnancy has resulted in a multiple birth (e.g., twins), a separate application form is needed for each child. The court is however likely to combine applications so that the case will be considered as one.

2. Papers are served on the surrogate and the second legal parent (if applicable). If the surrogate/second legal parent is overseas, they must be served in accordance with the service requirements of that country. Legal advice is strongly advised to ensure compliance with local laws.

A translator should be used if the surrogate/second legal parent does not speak English. It’s vital that the surrogate/second legal parent understands what they’re agreeing to, in order to ensure their consent is considered as valid.

3. An Acknowledgment of Service and Consent Form must be completed and returned to the court by the surrogate and (if applicable) the second legal parent.

4. The First Directions Hearing is usually dealt with on paper. This is where the Court reviews the paperwork and then makes an order on what needs to happen next.

International cases will automatically be allocated to the High Court in London. Overseas cases can sometimes be heard remotely, but applicants and surrogates should note that they may need to travel to London for a future hearing (though the surrogate’s attendance in person is less likely).

5. A Parental Order Reporter is appointed and will advise the court as to whether the Parental Order is in the child’s best interests.

They will:

• meet with the intended parents and the child at their home
• assess if there are any safeguarding risks
• check that the legal criteria have been properly met
• prepare a report detailing their findings
• The Parental Order Reporter may speak to the surrogate and, if an interpreter is required, a solicitor or clinic can arrange this for you.

6. The Applicant is ordered to produce a Statement (see below).

7. A Final Hearing is listed where a judge will review the paperwork and decide whether to make the order. In some cases, applicants may need to give evidence in person in court.

The Statement: ensuring legal compliance

The Statement is the main piece of evidence provided to the court. It must be very detailed and requires meticulous records to have been kept throughout the whole surrogacy process.

This list below provides examples of just a fraction of the detail needed for the Statement:

• how the surrogate and intended parents were matched
• the surrogate’s family background
• who provided the egg and sperm
• how and where the transfer took place
• who confirmed the pregnancy
• how the intended parents felt when it was confirmed
• what happened at the birth and who was there
• a list of expenses cross-referenced to any signed agreements (e.g., surrogacy documents signed abroad)
• what intended parents plan to tell the child(ren) about their conception and heritage
• DNA test results

This is most certainly a complex part of the process. For this reason, K J Smith Solicitors provide a comprehensive letter of advice to all surrogacy clients. This ensures that they keep all essential records from the beginning of their surrogacy journey.

International surrogacy: navigating cross-border legalities

International surrogacy is a popular choice. As well as ensuring papers are properly served and that consent is acquired, intended parents are additionally advised to consult specialist immigration lawyers.

Specifically, they need to discover if it’s actually going to be possible to bring a child back to the UK and find out how to get the relevant visas and travel documents to do so. What passports will the child be automatically entitled to and how can they apply for them? How will this impact upon their immigration status and citizenship, not just after birth, but throughout their life?

You can find out more by reading the UK’s Foreign and Commonwealth Guidance about Surrogacy overseas.

The Importance of feeling supported in UK Surrogacy

UK surrogacy law currently lags behind other countries like the USA and Canada but, despite its shortcomings, surrogacy continues to grow in popularity, increasing four-fold over the last ten years.

In 2023, the Law Commission of England and Wales, along with the Scottish Law Commission, published a joint report recommending a new, more effective surrogacy system. Whilst these reforms are still to be implemented, Eleanor Tanner continues to raise awareness and is passionate about helping people on their surrogacy journey today.

Eleanor explains that whilst surrogacy in the UK is complex, with early legal advice it’s a viable way for people to grow their family. She strongly advises anybody considering surrogacy to reach out for legal support so they can feel safe and supported, and able to focus on the joy of bringing a new life into the world.

Conclusion

Whether you’re planning your journey to parenthood through surrogacy, or considering becoming a surrogate yourself, Eleanor at K J Smith Solicitors is on hand to guide you. She’s familiar with the sometimes long and difficult path to parenthood and the unique challenges families can face.

K J Smith Solicitors believe everyone deserves access to early guidance for a clear understanding of what to expect on their surrogacy journey. That’s why we offer a FREE 45-minute initial consultation to help you get started.