Surrogacy – What do you need to know…

22 February 2023

Surrogacy has become an increasingly prevalent and prominent road to parenthood for those who seek an alternative to traditional conception. Despite its many challenges, surrogacy is becoming much more readily available and its normalisation within modern day society is noticeable. Surrogacy has become one of the most sought after options for assisted reproduction, along with as IVF and adoption, for those struggling to conceive naturally. The process is increasing in popularity with those in same sex relationships, those in heterosexual relationships unable to conceive and single women unable to find a lifelong partner.

What is surrogacy?

Surrogacy is the act of a woman (the surrogate) becoming pregnant and carrying a child for an individual/a couple who is unable to conceive or carry a baby themselves (the intended parent(s)). The intended parents can be any person or any couple who wishes to have a child but cannot conceive or carry the child successfully. This may be due to recurrent miscarriages, being in a same-sex relationship, pregnancy risks, age related concerns or a personal choice to not want to get pregnant. Personal reasoning aside, however, there are many important nuances with surrogacy, which can make the process quite complex and delicate.

There are two predominant types of surrogacy – straight surrogacy and host surrogacy.

Straight surrogacy (also known as traditional) is an arrangement where the surrogate conceives using her own eggs and the sperm of the intended father. This is usually accomplished through artificial insemination.

Gestational surrogacy (also known as host) is an arrangement where the surrogate is transferred an already fertilised embryo, using the egg and sperm of the intended parents. In this case, the child would have no biological relation to the surrogate and IVF is used to conceive the child.

Who is named on the birth certificate?

The surrogate, regardless of which type of surrogacy is used, will be the legal birth mother of the child. Therefore, the surrogate will be named on the birth certificate. This cannot be altered. If the surrogate is married or in a civil partnership at the time of birth, then her spouse or civil partnership will also be named on the birth certificate as the child’s legal father/second parent. If the surrogate is single, then one of the intended parents may be named on the initial birth certificate alongside the surrogate, however, this will depend on numerous factors.

Ultimately, however, this means that the intended parents will not be fully recognised, from a legal stand point, as the child’s legal parents at birth. Therefore, the intended parents will need to apply for a Parental Order once the child is born. Once the Parental Order is granted, the intended parents will be able to apply for a new birth certificate recording them as the legal parents of the child.

What if a Surrogacy Agreement is made?

Surrogacy in the UK can be significantly problematic due to the uncertainty stemming from lack of legislation. While the intended parents can have a Surrogacy Agreement drawn up at any point during the gestation, it is vital to note that these agreements are not legally enforceable in the UK. This means that should one party change their mind, they not, from a legal stand point, be in breach.

Why is this problematic?

The lack of enforceability of the Surrogacy Agreement means that both the surrogate and the intended parents can change their mind about the child at any point. The surrogate can decide to keep the child if she wishes. As she will be the legal mother on the birth certificate, and her consent is required for the intended parents to apply for a Parental Order, the surrogate cannot be forced to handover the child. Similarly, the intended parents can decide they no longer want the child. As they have no legal rights or parental responsibility for the child at birth, they cannot be forced to take the child if they no longer wish no, which in turn will force the surrogate to take responsibility. Therefore, by making Surrogacy Agreements unenforceable, neither the intended parents not the surrogate have any certainty about their relationship to the child or their obligations to each other.

For more information on obtaining a Parental Order, please contact our Family Law department on 01273 447 065 or get in touch through the Contact Us page.

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