If you are building or considering building your family through a UK surrogacy arrangement—commonly referred to as domestic surrogacy—it is essential to obtain legal advice. This will ensure that you, and your partner if applicable, are legally recognized as the parents of your child. The legal landscape surrounding surrogacy in the UK can be complex, and our role is to help you understand your position at every stage—whether you are just starting to explore the process, already expecting a child through a surrogate, or dealing with the legalities post-birth.
Key Legal Considerations
Surrogacy and Parentage in UK Law:
In the UK, the woman who gives birth to the child—the surrogate—is automatically regarded as the child's legal mother. Regardless of the intentions of the surrogate and the intended parents, this legal status remains in effect until steps are taken to alter it. It’s also important to note that the surrogate is responsible for registering the birth of the child within six weeks of the birth.
The determination of who else is legally recognized as a parent depends on several factors:
- If the surrogate is married, her husband is legally considered the father of the child, unless otherwise stipulated.
- If the surrogate is in a same-sex marriage or civil partnership, her spouse or civil partner will be recognized as the other legal parent.
- If the surrogate is unmarried, the intended biological father is often legally recognised as the father, provided he is the child’s biological parent.
- If conception occurs at a licensed UK fertility clinic, another person—such as the intended mother or a non-biological father—can be nominated as the second legal parent, subject to consent forms signed during the process.
Parental Orders: A Vital Legal Mechanism
In the UK, the most critical legal tool for formalizing parentage in surrogacy cases is a *parental order*. This is a court order that transfers legal parenthood from the surrogate (and her spouse, if applicable) to the intended parents. Once granted, the parental order permanently removes the legal rights and responsibilities of the surrogate, and the intended parents become the child’s legal parents. The child’s birth certificate will be re-registered to reflect this change.
Applying for a parental order is essential for ensuring that the intended parents have full legal rights and responsibilities over their child. Without it, the intended parents are not legally recognised as the child's parents under UK law.
Requirements for a Parental Order
In order to be granted a parental order, the court must be satisfied that several specific criteria are met:
- At least one of the intended parents must be genetically related to the child.
- The child must have been carried by the surrogate as a result of assisted reproduction, meaning natural conception does not qualify.
- If there are two intended parents, they must either be married, in a civil partnership, or in an enduring family relationship. Same-sex couples and co-parents can also apply together. In some cases, separated couples may still qualify if they meet the definition of an enduring family relationship.
- Any intended parent must be over 18 years old.
- The child must be living with the intended parents, and at least one of them must be domiciled in the UK, Channel Islands, or Isle of Man.
- The application must be made within six months of the child’s birth, although courts may extend this deadline in exceptional circumstances.
- The surrogate, as well as any other person recognized as a legal parent at birth, must provide their consent to the parental order. This consent cannot be given until at least six weeks after the birth.
- Any payments made to the surrogate beyond reasonable expenses must be approved by the court.
The Importance of Legal Advice
Without a parental order, intended parents in the UK are not legally recognized as their child’s parents, even if they are biologically related. This can lead to significant legal complications in areas such as custody, parental rights, and inheritance. Our team is here to guide both intended parents and surrogates through the process, helping to ensure that all parties are legally protected and that the necessary steps are followed to secure a parental order.
The recent case of P v Q and Others (2024) illustrates the complexities that can arise when informal surrogacy arrangements, especially those involving artificial insemination or disputes over parental rights, are not properly regulated. In that case, a same-sex couple faced challenges in determining legal parenthood due to a lack of clear agreements and the involvement of a sperm donor. The High Court emphasized the importance of adhering to formal legal processes to avoid uncertainty about the child's legal parentage (ewfc_b_2024_85).
Whether you’re just beginning your surrogacy journey or are already in the process, we provide comprehensive legal support to ensure your family is legally recognised and protected. Let us help you navigate the legal complexities of surrogacy in the UK with expert advice and guidance.
For advice and representation contact Stephanie Heijdra barrister via sh@stephanieheijdra.com, or 02071014682
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