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five questions answered about surrogacy

Five questions answered about surrogacy

Aug 3rd, 2021

Helen Page, Associate level Senior Legal Advisor

National Surrogacy Week is taking place between Monday 2nd and Sunday 8th August 2021.  Helen Page, who is a Senior Paralegal in our Family Team, will be writing a series of articles looking at the process of surrogacy, the legal meanings and implications around the process, and the important things that those wishing to use this process to start, or expand, their family need to be thinking about.

  1. What is surrogacy?

“Surrogacy is where a woman carries and gives birth to a baby for another person or couple” (Human Fertilisation and Embryology Authority).  There can be several reasons why a person or couple may choose to use the process to start or expand their family.  One or both people in a couple may be unable to have children, or a single person may wish to start a family of their own.  This process gives them the opportunity to do so.

  1. How is surrogacy treated in England and Wales?

The Surrogacy Arrangements Act 1985 makes commercial surrogacy an illegal act in England and Wales.  It is also a criminal offence for anyone to be advertised as a surrogate.  The only surrogacy arrangements that are permitted in England and Wales are those that take place on a purely ‘altruistic’ basis and are not carried out for any profit (albeit the payment of reasonable expenses is permitted).  It is important to note, however, that surrogacy arrangements are not enforceable under the Surrogacy Arrangements Act 1985.

  1. Do you have to go abroad to have a baby through a surrogate?

The simple answer is no.  Whilst some people choose to travel to other jurisdictions for this purpose, this is not the only option and you can still go through this process in this country.  There are a number of not-for-profit organisations who assist many families through this process.

  1. Who will be the parent(s) of the child when they are born?

One of the complexities in relation to the surrogacy process is determining the ‘legal parent(s)’ of the child when they are born.  This can vary between countries, so it is vital that you do your research first, particularly if you are intending to go abroad as part of the surrogacy arrangement.

In England and Wales, when the child is born, their legal mother will be the surrogate herself, as she is the woman who has given birth to the child (s33 HFEA 2008).

If the surrogate is married or in a civil partnership when she gives birth to the child, her spouse or civil partner will be treated as the child’s legal father (s35 HFEA 2008).  Even if the surrogate is not married or in a civil partnership, it is possible that her partner will be considered to be the legal father if a number of conditions are met (s36 & s37 HFEA 2008). 

There are also similar provisions in place in circumstances where the surrogate is in a same-sex couples and her spouse / civil partner / partner is treated as being the ‘second legal parent’ of the child (s42, s43 and s44 HFEA 2008).

In some other jurisdictions, it is possible for the “intended parent(s)” (i.e. the person or couple using the surrogate to carry and give birth to their baby) to be the legal parent(s) from the child’s birth.  However, whilst this may be the case in that country, the position in England and Wales remains the same.

  1. How do you become the legal parent(s) of a child born through surrogacy?

The Human Fertilisation and Embryology Act 2008 allows the intended parent(s) of a child born through a surrogacy arrangement to apply to the Court for a ‘Parental Order’.  This is a specialist Order that only relates to surrogacy.

A Parental Order works by terminating the legal parenthood of the birth parent (the surrogate) and her spouse / civil partner / partner (where applicable) and transfers it to the intended parent(s).  The purpose of a Parental Order is to reflect who was always ‘intended’ to be the legal parent(s) of the child.

There are a number of criteria that must be met in order for the Court to make a Parental Order which are set out in s54 HFEA 2008.  

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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