In February 2018 the Department of Health and Social Care produced a written guidance document for surrogates and intended parents which set out how to start a family through the surrogacy process in England and Wales.
The document provides key information about surrogacy and the relevant legal progress within England and Wales.
The guidance document can be found here.
It is an essential read for any person who is considering starting a family through this process.
Surrogacy in England and Wales is legal, providing that arrangement is not for profit. Only ‘reasonable expenses’ can be compensated to the surrogate mother and these will be assessed by the court following the birth of the child.
Surrogacy is where a woman will carry a baby for someone who is unable to conceive or carry the child themselves. There are two types of surrogacy:-
This is where the surrogate provides her own eggs to achieve a pregnancy with the intended father providing the sperm.
Host (gestational) surrogacy
Here the surrogate does not provide her own egg. The egg is either provided by the intended mother or a donor. In host surrogacy the surrogate does not have a genetic relationship with the baby.
Intended parents can be heterosexual or in a same sex relationship. They can be married, in a civil partnership or living together/co-habiting.
Before entering in to a surrogacy arrangement both the surrogate and intended parents need to be aware of the legal position. Without the benefit of legal advice, intended parents may discover later down the line, that they are caring for a child for whom they have no legal rights if they have not applied to the court for a parental order within the relevant timescales.
In addition, as the surrogate, whether host or straight surrogate, is by law the birth mother she can change her mind and refuse to hand the child over to the intended parents. To complicate matters further, if the surrogate is married or is in a civil partnership her husband or partner will be the legal father or second legal parent regardless of whether they are the biological parent.
Parties to a surrogacy arrangement may be encouraged by the clinic to enter in to a surrogacy agreement. Amongst other things this agreement can detail the arrangements for a parent order application however; this agreement is not enforceable by law and does not protect the intended parents nor transfer legal parenthood from the surrogate and her husband/partner. Some clinics insist that parties to this agreement take legal advice before committing to the process and indeed may ask for written confirmation that advice has been sought.
Following the birth of the child the intended parents must apply to the court for a parental order to transfer legal parenthood and at least one of the intended parents must be genetically related to the baby. As it stands single people cannot apply for parental orders in surrogacy cases, however the Government intends to introduce legislation to make this possible.
If you have been blessed with a baby via a surrogate and you meet the necessary requirements, the next step is to apply to the Court for a parental order. A Parental order, with the surrogate’s consent, transfers legal parenthood from the surrogate and her husband/partner to the intended parents. Without this order you may not be the legal parent which could have ramifications on your authority to make decisions on behalf of the child in the future, such as education, consenting to medical treatment, and even taking the child on holiday abroad.
If you are considering surrogacy as a way to start a family and you are in any way unsure as to the process of obtaining legal parenthood, or indeed you are uncertain as to whether you can apply for it you must seek legal advice.
Please contact a member of our dedicated family law team on 0845 287 0939. Alternately, you can complete an enquiry form and a member of our team will get back to you.
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