What is surrogacy and is it legal in the UK?
Surrogacy is where somebody (known as the ‘surrogate’) becomes pregnant with and then gives birth to a child on behalf of a person or couple who would like to become parents (known as the ‘intended parents’). After the baby is born, the intention is that parental status is transferred to the intended parents.
There are two types of surrogacy:
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traditional surrogacy (or ‘straight’ or ‘partial’ surrogacy) – when the surrogate is artificially inseminated (eg using the intended father’s sperm) but uses their own egg to conceive
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host surrogacy (or ‘gestational’ or ‘full’ surrogacy) – when the egg of a donor or another person (eg the intended mother) is used to conceive. This will be transferred to the surrogate using in vitro fertilisation (IVF)
Is surrogacy legal in the UK?
The general procedure of surrogacy is legal in the UK. However, there are various rules that apply to surrogacy arrangements. For example:
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surrogates are not allowed to advertise their willingness to be a surrogate
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it is illegal for intended parents to advertise that they are seeking a surrogate
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it is a criminal offence to broker a surrogacy arrangement on a commercial basis
It is illegal in the UK to pay someone to be a surrogate. However, intended parents can agree to cover a surrogate’s reasonable expenses incurred during the surrogacy process.
Furthermore, any surrogacy agreements are unenforceable in UK courts.
What is a surrogacy agreement?
A surrogacy agreement is an agreement between a surrogate (and sometimes the surrogate’s partner) and intended parents that sets out how they collectively intend that their surrogacy arrangement will work. A surrogacy agreement will generally cover aspects such as:
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the surrogate agreeing to carry and conceive a child for the intended parents
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arrangements for pre-conception, conception, pregnancy, and birth
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how any medical issues will be dealt with
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any agreements on future arrangements for the child (eg if the surrogate will have any relationship with the child)
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highlighting the parties’ understanding of the legal aspects of surrogacy
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how parental responsibility will be dealt with (eg arrangements for making a parental order)
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how costs and expenses will be dealt with
It is important to know that a surrogacy agreement is not legally binding in the UK. These agreements are important for facilitating communication and understanding between the parties, but will not be enforced by the courts.
Who are the legal parents of a surrogate child?
The person who gives birth to the child (ie the surrogate) is automatically considered to be a legal parent.
If the surrogate is married or has a civil partner when the child is born, this person will generally automatically be the child's second legal parent. Otherwise, the genetic father (ie the person who provided the sperm) will usually automatically be considered the second legal parent.
Aside from the case of an intended father who is also the genetic father (as described above), intended parents need to legally obtain parenthood and parental responsibility to become the child’s legal parents. This is usually achieved by obtaining a parental order.
How can intended parents apply to become legal parents?
Transferring legal parenthood from a surrogate to the intended parents can be done via parental order or adoption.
Parental orders
A parental order is a court order that transfers legal parenthood and parental responsibility to intended parents. This is the most common option for becoming a legal parent when at least one of the intended parents is genetically related to the child (ie they are the egg or sperm donor).
You can apply as an individual or with a partner. For an application to be successful, the:
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intended parents must be married, in a civil partnership, or living together as partners (if you are applying as a couple)
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child should be living with the intended parents
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parents should reside permanently in the UK (or Channel Islands or Isle of Man), and
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application must be made within six months of the child’s birth
In England and Wales, a parental order application should be submitted or taken to a family court. In Scotland, you need to fill out the Parental Order Form Scotland and take it to the Court of Session or sheriff court. This can be a complex process and it’s often prudent to instruct a solicitor to act for you.
Adoption
If neither intended parent is genetically related to the child, applying for a parental order is not an option. Instead, the child should be legally adopted. For information on this process, read Adoption.
For more information on obtaining legal parenthood, read the government's guidance on surrogacy and the Scottish government's guidance.
What happens if the child is born abroad?
If a surrogate gives birth abroad, a parental order can only be applied for if both intended parents are living in the UK.
Intended parents generally need to apply for a parental order in the UK even if they’re named as parents on a foreign birth certificate.
Additional legal considerations will also apply. For example, the child will require a visa to enter the UK if they’re not a UK or EU national.
In the case of foreign surrogates, the situation will also depend on the laws of their country.
For more information, read the government’s guidance on surrogacy overseas.
