Surrogacy

This page provides advice on the law relating to surrogacy including the different types of surrogacy and who is regarded as the legal parent(s) of the child at the time of birth and for the future. 

Types of Surrogacy 

Traditional surrogacy – The surrogate uses her own eggs and the intended father's sperm to become pregnant. This can be accomplished through artificial insemination, which can be performed at home or at a fertility clinic.

Gestational surrogacy – In this case, the surrogate does not use her own eggs, but rather those of the intended mother or a donor. IVF is the method used for this, and it is always performed at a fertility clinic.

Who are the legal parent(s) of the child at birth? 

The surrogate who has given birth is automatically regarded as the child's legal parent, even if they are not genetically related. 

If the surrogate is married or in a civil partnership with a man and conceives artificially (via IVF or artificial insemination at home), the surrogate's husband/civil partner is usually the legal father at birth, regardless of biological relationships. The same is true for same-sex surrogate mothers; if the surrogate mother is married or in a civil partnership with another woman at the time she conceives, her wife/civil partner will be recognised as the child's second legal parent.

Parental Orders

The intended parent(s) of the child can change who is regarded as the legal parents by obtaining a Parental Order. This will ensure that the parental rights are transferred from the surrogate to the intended parent(s).

Certain conditions must be met before the Parental Order is granted:

• At least one of the intended parent's gametes must have been used to create the embryo so that they are biologically related to the child. (If neither you nor your partner are related to the child adoption is the only way you can become the child’s legal parent(s). If you choose to adopt, a registered adoption agency must be involved in your surrogacy process.)
• The intended parent(s) must be over 18.
• If making a joint application the intended parents must be married, in a civil partnership or in an enduring family relationship.   
• The intended parent(s) can apply for a Parental Order 6 weeks after the child is born, and before the child is 6 months old.
• The surrogate (and her husband/wife/civil partner if relevant) must fully and freely consent and can only give consent 6 weeks after the birth.
• The child must be living with his or her intended parent(s) on the date of the application and the Order.
• One or both of the intended parents must be domiciled in the United Kingdom.
• No money can be exchanged, except reasonable expenses.

How to apply for a Parental Order

You must fill in a form form C51 for a Parental Order and submit it to the local family court within 6 months of the child’s birth.

You’ll need to provide the child’s full birth certificate, your marriage or civil partnership certificate (if you have one) and will also be charged a court fee of £255.

The court will then set a date for the hearing and issue you with a ‘C52 acknowledgement form’ that you must give to the child’s legal parent, i.e. your surrogate.

The birth mother and anyone else who is a parent of the child must agree to the Parental Order on an A101A form.

Pre-birth agreements/contracts

If you have a pre-birth contract or agreement with the surrogate, you will still need to apply for a Parental Order. This is because under UK law, any contracts or agreements signed before the child is born are not enforceable.

What if the surrogate does not provide consent for the Parental Order?

The surrogate's consent is required for the Parental Order to be granted and legal parenthood to be transferred to the intended parents. If the surrogate does not provide consent, the surrogate (and, if applicable, the surrogate's spouse) will remain the child's legal parent(s).

The Child Law Advice Service is limited to the advice we can provide in this area. Therefore, due to the complexities of this subject, we would strongly recommend that you seek the advice of a solicitor.