Surrogacy: How does it work and what is the legal process?

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Surrogacy is becoming more of a viable option for couples and individuals in England and Wales to have a child. Although, the ability to have a surrogate in the UK is not as simple as it seems.

This blog will discuss the law around surrogacy in England and Wales and the important information to note if you are considering a surrogacy agreement. It will also consider the legal process once you have used a surrogate.

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The Law on Surrogacy

Often when couples or individuals decide to use a surrogate to have a child, they often enter into a surrogacy agreement to record how they want the arrangement to work.

Although, surrogacy is legal in the UK, a surrogacy agreement cannot be enforced by law.

Under the Surrogacy Arrangements Act 1985 it is an offence to advertise that you are seeking a surrogate or for a potential surrogate to advertise to carry a baby. There can be no negotiating of the arrangement on a commercial basis and no payment can be made to the surrogate for her carrying the baby.

Therefore, if you are looking to carry a baby for a couple it must be a voluntary arrangement and likewise if you are a couple looking for a surrogate. You  cannot pay the surrogate for carrying the baby but you can pay for reasonable expenses such as medical bills.

Following the gestational period, once the baby is born the gestational mother is the legal parent i.e. the surrogate. If the surrogate is married, her spouse/civil partner also becomes the legal parent.

In this case, even though the intended parents  are the ‘biological’ parents or parent of the baby, they are not the legal parents or parent of the child. Therefore, following the birth of the baby, the ‘intended parents’ or ‘intended parent’ must apply for a parental order.

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Why do I need a Parental Order?

The ‘intended parents’ MUST apply for a parental order, so they are the legal parents of the child and have parental responsibility over the child. Thus giving them the authority to make decisions about the child’s medical care, education and to travel abroad with the child.

If no parental order is obtained, the parents or parent will come into legal complications in the future if the parents split or if important decisions need to be made regarding their child.

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How do I apply for a Parental Order?

To apply for a parental order, you must complete a C51 parental order form and submit this to the Court. The application must be made after the child has reached 6 weeks of age and before the child is  6 months old.. In order for the he Court to consider making a Parental Order, the following criteria must be met:

• The intended parents are above the age of 18;

• The intended parents must be married, in a civil relationship or living as partners in an enduring relationship or if only one parent is applying they can be an individual applicant regardless of relationship status;

• The prescribed timescales above must be adhered to;

• The surrogate and their married partner/civil partner must provide their consent no earlier than six weeks after the birth of the baby that they agree unconditionally to the making of a parental order with full understanding of what is involved;

• The child must have been conceived artificially and be genetically related to at least one of the intended parents;

• The child must be living with the intended parents at the time of making the parental order application;

• At least one of the intended parents (if they are in a couple) must be domiciled in the UK;

• The surrogate should be paid no more than reasonable expenses, unless authorised by the court.

(The criteria is the same for that of an individual using a surrogate).

Following the Court considering the above, they will then instruct CAFCASS (an independent body that advise the Court in relation to Children Act Matters) to allocate a parental order reporter to complete a parental order report to assist the Court.

The reporter will often meet with the surrogate and their spouse/civil partner, the intended parents/parent and the baby before making the report.

The Court will then consider the application, witness statements of the intended parents, the consent provided by the surrogate and their spouse/civil partner and the CAFCASS report when making the decision.

A final hearing will be scheduled, and a decision is usually made during that hearing but, in some cases, further hearings may be listed. For example, if the application is contested.

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Instructing a solicitor before entering into the surrogacy process, can help you fully understand all of the implications and legal steps that you have to take to achieve parental status.

At Consilia Legal, we can advise you as to the legal process and we can also represent you in your parental order application including  drafting the application for you and attending Court hearings.

If you would like further guidance or legal advice in relation to surrogacy, our talented family law team would be happy to help you. You can contact us on 0113 322 9222 or email enquiries@consilialegal.co.uk.