
Surrogacy is a method or agreement where a woman agrees to carry a pregnancy for a couple who will become the newborn child’s parents after birth.
Although legal in the UK, surrogacy is restricted by various rules. and it is the view of Surrogacy UK that the law “does not reflect the realities of modern surrogacy and needs thorough review.”
With international travel being fairly cheap and information being easily accessible via the internet, those who are looking to enter a surrogacy arrangement can find themselves able to do so overseas. Whilst it is an offence in the UK to broker a surrogacy arrangement on a commercial basis, or to advertise that you are looking for, or willing to act as, a surrogate, the law on this varies in other countries.
Who are the legal parents?
Under English law, the woman who carries a child is the legal mother. Therefore, the surrogate mother will, at birth, be the legal parent of the child instead of the intended mother, even if she is the biological parent. The surrogate mother is responsible for registering the birth and is recorded as the child’s mother on the birth certificate. If married, her husband will appear on the birth certificate as the father or if she is in a civil partnership, her partner will be recorded as the second ‘parent’.
The intended father can be registered on the birth certificate at this point if the surrogate mother is single and he attends the registration. Any written agreements between the intended parties and the surrogate are not enforceable and so the law surrounding surrogacy is based on trust and any issues are to be sorted after the child’s birth.
Family courts have been sympathetic to parents looking to uphold a surrogacy agreement, but they have to act in the best interests of the child which results in the outcomes not always being predictable.
Parental Orders
Many issues regarding parenthood arise as a result of surrogacy arrangements. To remedy this, the intended partners can get a parental order. Parental orders, like adoption orders, reassign parenthood by giving full parental status and parental responsibility to the intended parents, following which a new birth certificate will be issued.
Applications must be submitted by the intended parents within six months of the child’s birth, though special rules apply for unmarried and same-sex couples.
If a surrogacy arrangement is entered into abroad, or where the rules have not been fully complied with, the court will exercise its discretion in making a parental order. The court’s approach will be guided by the welfare of the child, sometimes meaning that the strict legal requirements will be disregarded.
Single parents
Single parents are currently not included in the laws surrounding surrogacy and so cannot benefit from the parental order which is available to couples. However, this position may change in the not-too-distant future.
In the UK, the regulations in place are protective measures to ensure that surrogacy remains a practice of goodwill, where surrogates are not exploited or coerced into bearing another’s child for financial security.
Whilst there are some areas of the law that could do with review (eg amending the law to allow the intended parents to be considered parents pre-birth and allowing single parents to benefit from parental orders), ultimately the laws ensure a safe system where parents have the chance to have their biological child when it would have been otherwise impossible.
This article was written and contributed by Aisling O’Reilly, Trainee Solicitor at Vardags
DISCLAIMER: This article should not be regarded as constituting legal advice in relation to particular circumstances. This article is merely a general comment on the relevant topic. If specific advice is required in connection with any of the matters covered in this article, please speak to Vardags Solicitors directly.