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.

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. 

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.”

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. 

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.