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Is Surrogacy Legal in the UK?

Surrogacy is a popular way of having a child for those who are unable to conceive or carry a pregnancy to term. However, the legal status of surrogacy varies from country to country. In the United Kingdom, surrogacy is legal, but there are certain restrictions and regulations that must be followed.

Altruistic surrogacy, where the surrogate mother receives no payment other than reasonable expenses, is legal in the UK. However, commercial surrogacy, where the surrogate is paid a fee in addition to expenses, is illegal. The law also prohibits advertising for or by surrogates.

In addition, the legal parentage of the child born through surrogacy is not automatically granted to the intended parents. Instead, the surrogate and her partner are considered the legal parents until a parental order is granted by the court. This process can take several months and involves a number of legal requirements. It is important to seek legal advice before entering into a surrogacy arrangement in the UK to ensure that all legal requirements are met.

Legality of Surrogacy in the UK

Governing Legislation

Surrogacy in the UK is legal, but it is strictly regulated by the Surrogacy Arrangements Act 1985. This act makes it illegal to advertise for a surrogate, or to pay a surrogate more than reasonable expenses. It is also illegal to negotiate a surrogacy arrangement on behalf of someone else. The act provides that the surrogate mother is the legal mother of the child, and her husband or partner is the legal father, unless the intended parents obtain a parental order from the court.

A parental order is an order made by the court that transfers legal parenthood from the surrogate and her partner to the intended parents. To obtain a parental order, the intended parents must apply to the court within six months of the child’s birth. The court will only make a parental order if it is satisfied that the conditions set out in the act have been met.

Types of Surrogacy

There are two types of surrogacy;

  1. Altruistic surrogacy
  2. Commercial surrogacy

In altruistic surrogacy, the surrogate mother receives no payment other than reasonable expenses. In commercial surrogacy, the surrogate mother receives payment in addition to reasonable expenses.

Altruistic surrogacy is more common in the UK than commercial surrogacy, as commercial surrogacy is illegal in many countries, including the UK. However, some intended parents choose to go abroad for commercial surrogacy, where it is legal. It is important to note that if the intended parents enter into a commercial surrogacy arrangement abroad, they may face legal difficulties when they return to the UK, as the child may not be recognised as their legal child under UK law.

Surrogacy Agreements

Enforceability

In the UK, surrogacy agreements are not legally enforceable. This means that if there is a dispute between the surrogate and the intended parents, the court will not be able to enforce the terms of the agreement. However, the court may take the agreement into account when making a decision about the welfare of the child.

It is important to note that any payments made to the surrogate must not exceed reasonable expenses. Any attempt to pay the surrogate more than reasonable expenses can result in criminal charges.

Pre-Birth Orders

In the UK, there is no provision for pre-birth orders. This means that the intended parents will not be recognised as the legal parents of the child until after the birth. The surrogate will be considered the legal mother of the child, and her partner (if she has one) will be considered the legal father.

After the birth, the intended parents can apply for a parental order. This will transfer legal parenthood from the surrogate and her partner (if she has one) to the intended parents. To be eligible for a parental order, the intended parents must be married, civil partners or in a long-term relationship.

It is important to seek legal advice before entering into a surrogacy arrangement in the UK. A solicitor can help you to understand your legal rights and obligations, and can guide you through the process of applying for a parental order.

Parental Orders

If you are considering surrogacy in the UK, you should be aware that obtaining a Parental Order is a crucial step in establishing legal parenthood of the child. This section will provide you with an overview of the eligibility criteria and application process for Parental Orders.

Eligibility Criteria

To be eligible for a Parental Order, you must meet the following criteria:

  • You must be at least 18 years old.
  • You must be married, in a civil partnership, or living as partners in an enduring family relationship.
  • At least one of the intended parents must be biologically related to the child.
  • The child must have been carried by a surrogate.
  • The surrogate must have freely and with full understanding of what is involved, agreed to the making of the order.
  • The intended parents must be domiciled in the UK, Channel Islands or Isle of Man at the time of the application.

It is important to note that if you are not married or in a civil partnership, you may still be eligible for a Parental Order if you can demonstrate that you are in an enduring family relationship.

Application Process

Once the child is born, you can apply for a Parental Order within six months of the child’s birth. The application process involves the following steps:

  1. You must obtain legal advice from a solicitor who is experienced in surrogacy law.
  2. You must complete the application form and submit it to the court.
  3. You must provide evidence that you meet the eligibility criteria, including evidence of the surrogate’s agreement to the making of the order.
  4. You must attend a court hearing, where a judge will consider your application and make a decision.

It is important to note that the application process can take several months, and it is advisable to seek legal advice as early as possible to ensure that the process runs smoothly.

Compensation and Expenses

When it comes to surrogacy in the UK, the law allows for surrogates to receive reasonable expenses, but not payment for their services. This means that surrogates can be reimbursed for costs incurred during the surrogacy process, such as travel expenses, medical bills, and loss of earnings. However, they cannot receive payment for their time or effort.

The reasoning behind this is to prevent surrogacy from becoming a commercial enterprise, and to ensure that surrogacy arrangements are made for altruistic reasons rather than financial gain. The law in the UK views surrogacy as a selfless act, and therefore surrogates should not be financially compensated.

It is worth noting that the definition of “reasonable expenses” can vary, and there is no set amount that can be claimed. However, it is generally accepted that expenses should be directly related to the surrogacy process, and should not include any additional payments for the surrogate’s time or effort.

If you are considering surrogacy in the UK, it is important to understand the legal framework surrounding compensation and expenses. You will need to work with a reputable surrogacy agency or solicitor who can guide you through the process and ensure that you are following the law.

International Surrogacy

If you are considering international surrogacy arrangements, it is important to understand the legal regulations surrounding surrogacy in the UK. Surrogacy laws can vary greatly from country to country, and it is important to ensure that you fully understand the laws and regulations in both your home country and the country where the surrogacy will take place.

One of the main challenges of international surrogacy is the lack of international legal regulation. This can lead to confusion and uncertainty for intended parents, surrogates, and children born through surrogacy. It is important to research the laws and regulations in both countries to ensure that the surrogacy arrangement is legal and that all parties involved are protected.

In addition, it is important to consider the potential challenges of international surrogacy, such as language barriers, cultural differences, and logistical issues. It may be helpful to work with an experienced surrogacy agency or lawyer who can provide guidance and support throughout the surrogacy process.

Ethical Considerations

Surrogacy raises several ethical concerns that need to be considered. Some of these include:

Exploitation of Women

One of the main ethical concerns surrounding surrogacy is the exploitation of women. Critics argue that surrogacy exploits women by turning their bodies into commodities and reducing them to mere vessels for carrying a baby. This is especially true in commercial surrogacy arrangements, where women are paid to carry a baby for someone else.

Consent and Autonomy

Another ethical issue with surrogacy is the issue of consent and autonomy. Critics argue that surrogacy undermines a woman’s autonomy by forcing her to undergo medical procedures and carry a baby to term against her will. They also argue that surrogacy contracts can be coercive and that women may feel pressured to enter into them due to financial or other reasons.

Parental Rights and Responsibilities

Surrogacy also raises questions about parental rights and responsibilities. In the UK, the legal status of the surrogate mother and the intended parents is not always clear. This can lead to confusion and disputes over who has the right to make decisions about the child’s upbringing and welfare.

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