Surrogacy has come a long way, especially in the UK. The Surrogacy Arrangement Act of 1985 marked a significant step in legally recognising surrogacy. Fast forward to today, and ongoing discussions highlight the dynamic nature of public attitudes towards surrogacy, prompting potential changes to the existing law.
In this article, we’ll focus on the current UK law in regards to surrogacy, looking at what it is, if it is legal in the UK, and any other considerations that may be useful if you’re thinking about starting a surrogacy journey.
What is surrogacy?
Surrogacy is when a woman, known as the “surrogate,” carries and gives birth to a child for others, called the intended parents. It is a process that involves legal, medical, and ethical considerations.
People often opt for surrogacy if they face challenges in having a baby. This includes same-sex couples, individuals with fertility issues, those with medical conditions, or those who’ve had trouble with pregnancy before, such as recurrent pregnancy loss.
In the UK, there are two types of surrogacy:
Full Surrogacy (Gestational Surrogacy): Intended parents use their own eggs and there is no biological connection between the baby and the surrogate;
Partial Surrogacy (Traditional Surrogacy): The surrogate’s eggs are fertilised by the intended parent’s sperm, making the surrogate the biological mother.
Is surrogacy legal in the UK?
Yes, surrogacy is legal in the UK but surrogacy agreements can’t be enforced by law.
Why? Well, when you choose a surrogate, they legally become the parent when the baby is born. And if the surrogate is married, their spouse can become a parent if they agree to it.
After the baby is born, legal parent status can be changed through a parental order or adoption.
If there’s a disagreement about who the legal parents should be, the courts step in. Their decision is based on what’s best for the child, regardless of whether a surrogacy agreement was in place or not.
Is paid surrogacy legal in the UK?
In the UK, “commercial surrogacy” - where the surrogate gets paid - isn’t legal. The only financial reimbursement a surrogate can be given is for reasonable expenses directly tied to the surrogacy and pregnancy. This includes money for maternity clothes and loss of earnings.
What is typically agreed as ‘reasonable’ is usually decided in the surrogacy agreement between the parties involved, or can be decided with the help of family solicitors who might be involved in the process.
Surrogacy and legal parenthood
As we have mentioned, when a child is born through surrogacy, legal parenthood isn’t automatically granted to the intended parents. Instead, the intended parents can apply for a parental order. When the court grants this, legal parenthood moves from the surrogate to the intended parents.
While surrogacy agreements aren’t legally binding, it’s still a good idea for the intended parents and the surrogate to create one before the surrogacy process begins. This agreement will outline things like financial arrangements, medical aspects and the right to be the legal parent.
When the baby is born, intended parents can apply for a Parental Order. In granting a Parental Order, the courts will look at:
Child eligibility: The child is under 18 and was conceived through surrogacy;
Genetic connection: If at least one intended parent is genetically linked to the child;
Residence: One or both intended parents must live in the UK, Channel Island or Isle of Man;
Surrogate consent: The surrogate should have willingly agreed to the Parental Order;
Timing: The Parental Order must be made within 6 months of the child’s birth;
Financial remuneration: No money or perks should be exchanged unless authorised by the court.
Getting a Parental Order means the surrogate gives up any further rights or duties towards the child. However, this is only possible if at least one intended parent is genetically linked to the child.
If there is no biological connection to either of the intended parents, the only way to become the child's legal parent is through adoption.
Are surrogacy agencies legal in the UK?
Whether or not a surrogacy agency is legal depends on the type of agency.
Commercial surrogacy agencies are not legal. It’s a big no-no (i.e. a criminal offence) for a third party organisation to make money for arranging a surrogacy.
Altruistic surrogacy agencies, however, are legal only if they do not profit from the surrogacy. Only reasonable costs tied to the pregnancy can be reimbursed.
What are the rights of a donor in surrogacy?
In the UK, the rights of a donor in a surrogacy arrangement depends on the specific nature of the donation (i.e. whether it involves eggs, sperm, or embryos).
Sperm donors who donate through a Human Fertilisation and Embryology Authority (HEFA) licensed clinic are not the legal parent of any child born, nor do they have any legal obligation to them or rights over how the child will be raised. They will not be asked to support financially, nor will they be named on the birth certificate.
However, if a person donates sperm in any other way (i.e. not through a licensed clinic) they are classed as the legal father of any child born from that donation. This means they could be asked for financial support and be deemed as having a legal obligation for any child born through the donation.
Any person who gives birth to a child is considered the legal parent, regardless of the egg donor’s genetic contribution. Therefore, in any surrogacy agreement, it’s important to understand that legal parenthood is not automatic and involves a legal process where the surrogate transfers their parental rights to the intended parents. However, they can not be forced to do this, even if a surrogacy agreement is in place, without court intervention.
Can a surrogate decide to keep the baby?
This is a complex question, and the answer depends on at which point the surrogate decides they want to keep the baby.
When a Parental Order is granted by the court or the adoption process is complete, the surrogate loses legal parenthood. Therefore, after this point they cannot decide to keep the baby because their legal ties to the child have already been severed.
However, if a surrogate decides they will not consent to the Parental Order, things can get a bit more complicated.
In these cases, the court will step in and will decide whether or not to grant the Parental Order to the intended parents. Regardless of whether there is a surrogate agreement in place, this decision is at the court’s discretion, however a surrogacy agreement can be presented in court as evidence of both parties intentions before the child’s birth.
Inter-country surrogacy and the law
Some individuals and couples may consider entering into surrogacy arrangements abroad. In these cases, it is important to get legal advice before acting on this.
Currently, there are no international agreements or conventions governing how surrogacy should be managed between countries. However, individuals residing in the UK involved in inter-country surrogacy arrangements are subject to UK law. Therefore, the definition of parent under UK law can affect whether a child born abroad through surrogacy can be brought into the UK under immigration law.
Proposed reforms to improve surrogacy laws
In 2023, The Law Commission of England and Wales and the Scottish Law Commission published proposed reforms to improve what are deemed to be ‘outdated’ surrogacy laws.
The biggest of these suggested reforms is a change to legal parenthood. Under these reforms, the intended parents would become the legal parents when the baby arrives, without having to wait around to get a Parental Order. However, the surrogate would still have the right to change their mind and withdraw consent.
The suggested reforms also include new safeguards to make sure everything goes smoothly, including screening, medical and criminal record checks, legal advice and counselling for both parties.
Under this ‘new pathway,’ however, some intended parents will still need to get a Parental Order. But the reforms do seek to change these too, including allowing the court to make a parental order where the surrogate does not consent, provided the child’s welfare is dependent on this.
The reforms also proposed a new way to make sure surrogacy agreements follow the rules with the help of non-profit Regulated Surrogacy Organisations who, in turn, will be regulated by the Human Fertilisation and Embryology Authority (HEFA).
Other suggested reforms include:
Creating a new Surrogacy Register to increase transparency. This register would provide children born through surrogacy the chance to find out who their biological parents are should they wish to when they are older;
More clarity over permitted and prohibited payments to the surrogate to make sure a surrogate is not left worse off during or after the pregnancy, while protecting them from exploitation;
Ensuring surrogacy remains an altruistic endeavour, rather than a profitable one (i.e. commercial surrogacy);
Legal and practical measures to safeguard the welfare of children born through international surrogacy.
It's important to note that the reforms are yet to become law and it is now up to the Government to decide whether to move forward with these legal reforms to surrogacy.
The ethics of surrogacy
The ethics of surrogacy is a complex and subjective matter, involving various perspectives and considerations. Ethical concerns often revolve around issues such as:
Consent and autonomy;
Potential exploitation;
Welfare of the child.
Public opinion varies on the ethics of surrogacy, with some viewing it as a positive and compassionate way for individuals or couples to become parents, while others raise concerns about potential risks and moral considerations.
Nevertheless, in the UK surrogacy is legal. However, it is advisable for individuals considering the surrogacy route to seek legal advice in regards to surrogacy agreements.
For specific help and advice relating to surrogacy, parental orders, and the law, contact our legal assessment team for a free case assessment and quote