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 – This is where the surrogate uses her own eggs and the sperm of the intended father to become pregnant. The method to achieve this would be artificial insemination and can be done at home or at a fertility clinic.
Gestational Surrogacy – This is where the surrogate does not use her own eggs and instead uses those of the intended mother or a donor. The method for this is IVF and is therefore always done 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, and conceives artificially (through IVF or artificial insemination at home) the legal father at birth is usually the surrogate’s husband and this is irrespective of the biological relationships. The situation is the same for surrogate mothers who are in a same-sex relationship; if the surrogate mother is in a civil partnership with another woman at the time she conceives, her same-sex partner will be recognised as the child’s second legal parent.
The intended parents 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 parents.
Certain conditions must be met before the Parental Order is granted:
- At least one of the intended parents must be a biological relation of the child. (If neither you or your partner are related to the child, or you’re single, adoption is the only way you can become the child’s legal parent. If you choose to adopt, a registered adoption agency must be involved in your surrogacy process.)
- The intended parents must be over 18.
- The intended parents must be married, in a civil partnership or in an enduring family relationship.
- The intended parents 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 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 parents 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’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 £215.
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.
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?
Ultimately, in order for the Parental Order to be granted and for legal parenthood to be transferred to the intended parents, the consent of the surrogate is required. If the surrogate does not provide consent, the surrogate (and spouse, where applicable) will remain the child’s legal parent(s).