Don't start on the surrogacy process until you address these five issues.

Aug 5th, 2021

Helen Page, Associate level Senior Legal Advisor

Before embarking upon the surrogacy process, RESEARCH IS KEY.  The process can be complex and given that in some cases it will take place internationally, it is vital that you understand the laws, rules and potential implications surrounding the process before going ahead.  Here are five issues you need to answer before you embarking down the surrogacy road to build your family.

  1. Is surrogacy legal?

In the UK, surrogacy arrangements are not illegal as long as they are not arranged ‘commercially’ – i.e. for profit.  It is acceptable for reasonable expenses to be paid and parents can often expect to have to pay for the fertility treatment and certain expenses for the surrogate.  However, this is not going to be the case in all countries around the world.  You do not want to embark on the process only to later find out that you are committing a criminal offence by doing so.  For example, some states in the USA allow surrogacy, while others do not.  It is entirely prohibited in France, Germany, and Spain.

  1. How do we find ourselves a surrogate mother?

It is unlawful in the UK to advertise for a surrogate.  The surrogate must be the one to choose the parent(s).  There are a number of not-for-profit organisations who can help families find themselves a surrogate.

In countries such as the USA or Canada, there can be quite rigorous ‘matching’ process to go through in order to find the intended parent(s) a surrogate and to make sure that everyone is a good fit for one another.  An agency would usually be involved in these situations.

In some countries, there may be little contact that takes place between the surrogate and the intended parent(s).  This should be investigated very carefully, to establish why this is the case.  It may be that all parties are happy to have minimal contact with one another, but this may potentially be a red flag.  You need to question the reason why the surrogate may be kept out of contact.

  1. Who are the child’s legal parents from birth?

This is a complex issue and varies between countries.  In the UK, the child’s legal parents from birth will be the surrogate mother and, if she is married, in a civil partnership or her partner satisfies the ‘second parent conditions’, they will legally be the child’s father / second parent.  The intended parent(s) can only become the child’s legal parents by securing a Parental Order. 

Other jurisdictions (for example, the USA) allow mechanisms to be put in place before the child is born.  This means that the intended parent(s) will be recognised as the child’s legal parents as soon as they are born.  However, it is important to remember that that is only the legal status in that country.  Once you return to the UK, you will still need to apply for a Parental Order to be recognised as the legal parents of the child.  The status in another country does not alter the position in the UK.

You should consider obtaining legal advice from a lawyer in that country to find out what the position will be regarding the legal status of the child’s parents when they are born and who in fact is going to be considered as the child’s legal parents.  It is important that you do not simply assume that you will automatically be the child’s legal parents (as demonstrated in the UK).

  1. What nationality is my child?

This is something you need to investigate if you are going through the surrogacy process abroad.  There are different rules around the world in relation to nationalities and citizenship.  You should research the position carefully in the relevant country to find out what nationality the child will be considered to be when they are born.

  1. How do we bring the child back to the UK?

If your child is born outside of the UK, it is vital that you consider and investigate how you are going to bring them back to the UK.  You also need to think about how you are going to access and complete any relevant documentation.  It is important that you take specialist legal advice from an immigration lawyer, who will be able to advise you upon the steps you may need to take.  It is also sensible to seek legal advice from an immigration lawyer in the country where the child is being born, to understand what the position is regarding leaving the country, and also any issues with nationality and citizenship.

If you or a family member would like to talk to us in confidence on this issue, our first contact is time unlimited and free of charge. Please contact us.

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Helen Page

Associate level Senior Legal Advisor

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