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Surrogacy in the UK

Johann Wolfgang von Goethe

“Knowing is not enough; we must apply. Willing is not enough; we must do.”

It is legal to enter into surrogacy arrangements in the UK.  There are however some rules regarding these agreements - parties to such an agreement should take appropriate legal advice, as an application for a parental order after surrogacy is regulated by strict conditions. It is advisable for the intended parents to instruct a solicitor before signing a final surrogacy agreement. The parents can then obtain advice in relation to whether any clauses in an agreement would provide any problems.

Surrogacy agreements are not legally binding

Surrogacy agreements are not enforceable in England and Wales. Therefore, in respect of giving the child to the intended parents, and dealing with expenses and other issues, it is important that the parties respect the agreement into which they have entered.  It is not possible for a third party, such as a solicitor, to negotiate the surrogacy contract about payment.

Some parents worry about what may happen if a surrogate wants to keep the baby after birth. Understanding between both parties is important, and although an agreement is not technically legally binding, it can clarify matters and promote good communication. There are many surrogacy arrangements every year in the UK and such problems are rare.

If there is a dispute about who should look after a child after birth, a party can make an application to the court under the Children Act, for a Child Arrangements Order.  Yes, there are some reported cases in this area of law, but applications are rare. The court deals with each case on a case by case basis, as each is unique and reflects different situations. The court has to consider a child’s best interests, and there have been cases where a surrogate has been allowed to keep a child, and other cases where a child has been transferred to the intended parents.

Payments for UK surrogacy

It is legal for parents to pay a UK surrogate more than reasonable expenses. The issue of payments is a consideration for the family court, which has to authorise any payments which are more than reasonable. This has to be done before a parental order is made by the court. The court has to decide what is a reasonable expense in each case. Each case is individual, but there is authority about the court failing to make a parental order due to issues with over reasonable expenses. This is an important issue to consider when deciding how much expenses are paid.

Fertility Clinics

Advertising

It is an offence to advertise that you are looking to engage with a surrogate mother, wanting to act as a surrogate mother or for a third party to facilitate the making of a surrogacy arrangement, if it is not a non-profit-making organisation.

Surrogacy agencies

It is a criminal offence for a third party to receive payment for arranging surrogacy, although there is an exemption for non-profit-making organisations. There are some non-profit agencies, who work within the rules. 

Treatment at UK fertility clinics

The Human Fertilisation and Embryology Authority's Code of Practice sets out the obligations of UK fertility clinics dealing with surrogacy treatment.

Legal parenthood

Special rules on legal parenthood apply when treatment takes place at a licensed fertility clinic. The Human Fertilisation and Embryology Authority have helped these clinics to update guidance, which makes clear that:

  • the surrogate is the legal mother of the child
  • if the surrogate is married, she and her husband or wife or civil partner are the legal parents. In rare cases where it can be shown that the surrogate's spouse/civil partner does not consent, the surrogate can complete Form LC to explain the circumstances. Form LC cannot be used routinely as a way of excluding the spouse from being a legal parent but it can negateparenthood if the spouse genuinely does not consent
  • if the surrogate is not married (or her spouse does not consent to the conception) there is a choice as to who is the second parent.  The biological father is the legal father if no HFEA parenthood forms are signed. Alternatively, someone else (usually the intended mother or the non-biological father) can be nominated as the other parent by using HFEA Forms SWP and SPP. The forms must be signed after counselling and before conception. It is not possible to nominate the surrogate's sibling, parent or child as the other parent

Clinic obligations to surrogacy patients

Fertility clinics have to get appropriate consent to treatment from both intended parents, the surrogate and her husband or partner. There are specific HFEA forms for surrogacy.

Counselling

Counselling should be offered to all involved in a surrogacy arrangement.

Contact Us 

To find out more as to how we can help with any aspect of surrogacy or fertility law, contact us today.

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