Adoption and Surrogacy Lawyers

A child can only have two legal parents. It follows that if the court makes an adoption or parental order, the effect will be to extinguish the legal parenthood of the original parents.

Whether the egg donor is the legal parent of the child will depend on their relationship with the birth mother. The birth mother is always the legal mother regardless of whether they are the biological mother. 

If the egg donor is the birth mother’s spouse, civil partner, or unmarried partner, it is possible for them to be the second legal parent of the child provided certain formalities are complied with.

Unlike sperm donation, it is only possible to obtain a donor egg from a fertility clinic. It is possible to conceive using a donor egg from either a known or anonymous donor.

Whether or not a sperm donor is a legal parent of a child, and as a consequence financially responsible for that child, will depend on how the child is conceived.

Donation through a UK licensed clinic:

1. Provided a sperm donor donates sperm through a licensed clinic to unknown recipients, they will not be the legal father of the child and will not have any legal or financial obligation as far as the child is concerned. This means they will not be named on the birth certificate and will not have parental responsibility for the child. Hence, they will not have a say in how the child is raised.
2. If, however, a sperm donor donates via a UK licensed clinic to someone they know, then things are slightly more complicated. If for example they donate to a same sex female couple who opt to register the non-birth mother as the second legal parent, they will not be the legal father, but if there is no second legal parent then they could be. In this scenario, a lot would depend on the paperwork signed at the clinic and the intentions of the parties concerned.

Conception at home:

1. If the sperm donor donates through sexual intercourse, then they will always be the legal father of any child conceived and could potentially be liable to pay child support. This rule applies regardless of what the parents agree or what is recorded on the birth certificate.
2. If donation takes place via artificial insemination to a couple who are married or in a civil partnership the sperm donor will not be the legal parent. Rather it will be the birth mother and their spouse/civil partner (assuming it cannot be shown that the spouse/civil partner did not consent). If, however, the birth mother is not married or there is no second legal parent, then the sperm donor will be the legal parent and again it is not possible for the parents to override the legal position in this regard and agree something different.

At present under UK law the birth mother is always the legal parent. It follows that upon birth, the surrogate will be the child’s legal mother, irrespective of whether the child is born in the UK or overseas.

If the surrogate is married or in a civil partnership, their partner will be the other legal parent even though they will have no biological connection to the child. This rule applies unless the husband, wife or civil partner of the surrogate can show that they did not consent to the conception.

If the surrogate is not married or in a civil partnership, the second legal parent will normally be the intended father (assuming he is the biological father). 

Alternatively, if conception takes place at a UK fertility clinic, someone else can be nominated as the second parent such as a non-biological father or an intended mother.

Surrogacy is defined in the Surrogacy Arrangements Act 1985 as a mother who carries a child in pursuance of an arrangement made:

• before she began to carry the child; and

• with a view to any child carried in pursuance of the arrangement being handed over to another person or persons.

If someone decided, either during pregnancy or after a child was born, that they would like someone else to raise the child, this would not come within the legal definition of surrogacy — the arrangement has to come to fruition prior to the woman becoming pregnant.

Surrogacy is still relatively rare but the number of people turning to surrogacy is increasing year upon year. There are no reliable statistics regarding surrogacy in the UK, but UK courts reported receiving 67 applications for a parental order in 2008. Fast forward to present day and the number of such applications has now increased to over 400. That’s an increase of almost 600%.

Yes, it is perfectly legal to enter into a surrogacy arrangement in the UK. However any form of commercial surrogacy is illegal. This means that no money, other than “reasonable expenses”, can be paid to the surrogate, unless authorised by a court. A criminal offence will be committed if a third party helps to negotiate or facilitate a surrogacy arrangement for payment, or a surrogate advertises her services. 

People have babies via surrogate arrangements for a whole host of reasons. Listed below are just a few examples:

• Couples who are unable to conceive naturally due to fertility issues

• A single man

• A same sex couple

• A couple who has experienced trauma such as stillbirth or recurrent miscarriage

• A female partner who does not wish to carry their own child for personal reasons such as the impact it would have on their body/career

• Females who were born without a uterus or cancer survivors who have had their uterus removed

• A couple who has experienced a number of failed IVF attempts

With gestational surrogacy, the surrogate is not the biological mother and has no genetic link to the baby. It involves the creation of an embryo from the egg and sperm of the intended parents, a donated egg and sperm of the intended father or donated sperm and eggs. The embryo is then implanted in the surrogate at a clinic.

In contrast, traditional surrogacy is where the surrogate is the biological mother. The surrogate is artificially inseminated with the sperm of the intended father or of a sperm donor.

Over the last 30 years, gestational surrogacy has become the most common type of surrogacy.

Altruistic surrogacy is where the surrogate does not accept payment for carrying a baby on behalf of someone else. In contrast, commercial surrogacy is where the surrogate is paid a fee, in addition to any out-of-pocket expenses. Commercial surrogacy arrangements are illegal in the UK but not in countries such as India and some states in the USA.

UK law does not set out a clear definition of what constitutes “reasonable expenses. In the case of Re A, B and C (UK surrogacy expenses) (2016) EWFC 33, Ms Justice Russell DBE referred to a “going rate” of between £8,000 and £15,000 but observed that, “There is no universally acceptable figure to pay for surrogacy expenses in the UK, irrespective of the circumstances in law, whether it is £15,000 or more or less.”

All surrogacy agreements are bespoke, and the contents will differ depending on the specific circumstances and the individuals involved. The parties to the agreement may wish to give thought to the following:

• Arrangements for conception

• Who will attend any antenatal appointments/scans

• Whether the surrogate is expected to take any particular supplements and abstain from alcohol/nicotine/drugs

• Who will attend the birth

• What will happen post-birth

• Will the surrogate continue to have a relationship with the child post-birth

• What payments will be made to the surrogate to cover her reasonable expenses

• What would happen in the event of a complication, such as a still birth or the baby being diagnosed with a serious health problem

• The process for obtaining a parental order, and perhaps more importantly, everyone’s commitment in this regard

Whilst some of the above may be sensitive in nature and difficult to discuss, it is always better to have these conversations at any early stage, as opposed to after conception. Indeed, it is important that the intended parents are matched with the right surrogate and vice versa.

No. As things stand surrogacy agreements are unenforceable in the UK. This is because under English Law, a surrogate cannot be forced via any contractual provision to hand over their baby and likewise the intended parents cannot be forced to pay money to the surrogate or assume responsibility for the child upon birth. It follows that any such written agreement or contract will not be enforceable and a high level of trust needs to exist between the surrogate and the intended parents.

There is value in having a surrogacy agreement, even if it is not enforceable in the UK. Even though disputes rarely arise and in the vast majority of surrogacy arrangements everything goes to plan, it is always a good idea for anyone considering surrogacy to discuss matters in detail with the surrogate and commit any plans to paper so that everyone’s intentions and expectations are clear. That way disappointment, potential conflict and misunderstanding can be avoided. 

Disputes rarely arise and in the vast majority of surrogacy arrangements everything goes to plan. That being said, it is always a good idea for anyone considering surrogacy to discuss matters in detail with the surrogate and commit any plans to paper so that everyone’s intentions and expectations are clear. That way, disappointment, potential conflict and misunderstanding can be avoided.

As highlighted above, payment ought to be limited to “reasonable expenses”. These can include, but are not limited to, loss of earnings, medical expenses, maternity clothes, vitamin supplements and relaxation treatments such as massage. In the UK, surrogates typically receive between £12,000 and £20,000 by way of expenses.

They can approach a non-profit agency for help. Sometimes they arrange social events so that intended parents can meet other people going through the same process as well as potential surrogates.

It is important that the surrogate and the intended parent(s) are compatible and share a good relationship. It is likely that they will need to spend a lot of time together and both will need the support of the other to help them navigate the process. The relationship between the surrogate and the intended parent(s) is often very special, whilst at the same time very intense.

It is estimated that roughly 50% of intended parents seek a surrogate outside of the UK.

Although surrogacy is legal in the UK, the legal framework is restrictive. As highlighted above, surrogacy agreements are unenforceable. The intended parents are anxious to secure greater certainty and protection. It is also difficult to secure a surrogate in the UK as they are not permitted to advertise and there are simply not enough surrogates available.

In some countries commercial surrogacy is permitted and intended parents can approach an agency which will screen the surrogate and provide a comprehensive service. It may also be possible to sign up to a surrogacy agreement which is legally recognised in that country and will provide for the intended parents to be named as the legal parents on the birth certificate. It is easy to understand why such an offering would be attractive to the intended parents.

The US, Canada, and Georgia are the most popular destinations for overseas surrogacy. Prior to the current war between Russia and Ukraine, Ukraine was also a popular destination.

Yes. Any documents which the surrogate is invited to sign should be in her own language. The intended parent(s) will need to engage the services of a notary to go through any documents with the surrogate in her own language and the notary will then produce a statement setting out all the circumstances of the case.

More importantly, the intended parent(s) need to give thought to how they will get the baby back to the UK and we would strongly advise intended parents in this situation to seek advice from an immigration specialist, not only in the UK but also in the country where the surrogate resides. Certainly, it is advisable to get any paperwork in place in good time.

Sometimes it is possible to apply for an emergency passport and return with the child straightaway. A lot, however, will depend on whether the child has a genetic link with at least one of the intended parents.

It is not unheard of for intended parents to get stuck overseas with their new baby for prolonged periods whilst waiting for issues concerning immigration to be resolved.

At present, under UK law the birth mother is always the legal parent. It follows that, upon birth, the surrogate will be the child’s legal mother, irrespective of whether the child is born in the UK or overseas.

If the surrogate is married or in a civil partnership, her partner will be the other legal parent even though they will have no biological connection to the child. This rule applies unless the husband, wife or civil partner of the surrogate can show that they did not consent to the conception.

If the surrogate is not married or in a civil partnership, the second legal parent will normally be the intended father (assuming his is the biological father). Alternatively, if conception takes place at a UK fertility clinic, someone else can be nominated as the second parent such as a non-biological father or an intended mother.

If the child is born in England or Wales, it is the responsibility of the surrogate to register the birth. She will be registered as the mother and her civil partner/spouse will be registered as the second parent.

If the surrogate is not married or in a civil partnership, the other legal parent can be included on the birth certificate provided he or she attends the birth registration. If, however, the intended parent is not the biological father, he/she will need to bring with them the HFEA forms nominating them as the second parent. Such forms need to be executed and signed prior to conception.

No. Only two parents can currently be identified on the birth certificate.

The intended parents will need to apply for a parental order in the UK following birth.

Yes. It is widely accepted that the law in this area is ripe for reform. The Law Commission is presently undertaking a review of the law surrounding surrogacy and parental orders and their final report (and a draft bill) is expected in August 2022. It is anticipated that a new pathway will be introduced which will allow intended parents to become the legal parents from birth provided certain requirements are met.