Surrogacy in Practice – Key Terms and Legal Parentage

Written by Eleanor Tanner

Introduction

The route to becoming a parent via surrogacy is a legal minefield that can be extremely difficult to navigate without expert advice.

To best understand the legal principles at play and the hoops to be jumped through, it is important to first have a firm understanding of the relevant terminology and technical processes at work.

The Conception Process

In Vitro Fertilisation (“IVF”)

IVF is the process whereby an egg that has been removed from the ovaries is fertilised with sperm in a laboratory. The fertilisation process creates an embryo.

Once the process of creating the embryo(s) is complete, one or two embryos will be placed into the womb. It will then usually take a few weeks to know whether the process has successfully resulted in pregnancy.

Artificial Insemination

Artificial insemination is a process by which sperm is directly inserted into the womb to fertilise an egg. If the process is successful, it will result in a pregnancy. Similar to IVF, it will usually be a few weeks before a pregnancy test can accurately confirm whether the process has been successful.

Types of Surrogacy

There are two types of surrogacy:

• traditional surrogacy: the surrogate’s eggs are used; and
• gestational surrogacy: the surrogate carries the intended/genetic mother’s genetic material (i.e., their eggs).

Traditional Surrogacy

In traditional surrogacy arrangements, the surrogate’s own genetic material (eggs) will be used. This will mean that the surrogate will also be the baby’s genetic mother – even if not ultimately intended to be their legal mother.

The baby’s genetic parents will therefore be the surrogate and the man whose sperm is used.

Gestational Surrogacy

In a gestational surrogacy arrangement, treatment will always be via IVF. This is because the only way for the surrogate to carry the genetic mother’s child is for the genetic mother’s embryo to be transferred to the surrogate’s womb using the IVF process.

Legal Terminology and Parentage in Surrogacy Cases

Legal Mother

Under UK law, when a baby is born following a surrogacy arrangement its legal mother will always be the person who has given birth. This is the case even if the person who has given birth (the surrogate) is not the baby’s genetic mother.

Surrogate’s Spouse/Civil Partner

If the surrogate was married or in a civil partnership at the point of conception, then their spouse or civil partner will automatically be regarded as the baby’s legal parent – regardless of genetic link and regardless of whether their spouse/civil partner is a woman or a man. This is dependent on the surrogate’s spouse/civil partner consenting to the artificial insemination/IVF treatment.

Legal Father (Where Surrogate is Unmarried/Not in a Civil Partnership)

Legal fatherhood is nuanced where the surrogate is not married or in a civil partnership at the point of conception.

If the surrogate is not married or in a civil partnership, and conception took place outside of a UK-licensed clinic then the intended father will be the baby’s legal father provided his sperm was used to conceive the baby.

Where a baby is conceived at a licensed clinic using donor sperm and the surrogate is not married or in a civil partnership at the point of conception, the intended father can become the legal father if his sperm has been used to conceive the baby. However, the surrogate can elect another person to be registered as the second parent of the baby (provided they consent to this). For instance, she may consider electing the intended mother to be registered as the second legal parent of the baby.

The genetically intended father will not always be the baby’s legal father, even when conception takes place via a private arrangement at a licensed clinic. It is essential to take early legal advice to ensure appropriate parental rights are secured.

Becoming a Legal Parent Through the Surrogacy Process

The law around surrogacy is exceptionally complex and nuanced. There are several ways in which a person can become a legal parent using a surrogate, and also in which they can ensure that the surrogate’s spouse/civil partner/partner's legal rights are appropriately distinguished.

In this series of blog posts, Eleanor will be exploring the key legal considerations for individuals seeking to become parents via surrogacy. Keep an eye out for further chapters of this series to learn more about the legal processes and principles involved.

If you are seeking legal advice in relation to parental rights associated with surrogacy, get in touch with Eleanor Tanner at our Newbury office, you can email newbury@kjsmith.co.uk.