Surrogacy is an arrangement where a woman agrees to carry a baby for someone else, usually where that person is unable to conceive or carry a baby for themselves.
Using a surrogate or agreeing to become a surrogate is a huge life decision, making it important for those involved to understand their legal rights before proceeding.
The following article examines the legality of surrogacy arrangements in the UK, including the rights of surrogate parents and the surrogate themselves. We also look at the issue of payment and costs in the context of surrogacy, as well as the role of surrogacy agreements. Finally, we look at the formal process of applying to the court for legal parenthood.
Anyone considering entering into an international surrogacy arrangement is strongly advised to first seek specialist legal advice, not least due to the varying laws of different countries in relation to surrogacy and the rights of surrogates and surrogate parents.
Is surrogacy legal in the UK?
Surrogacy is legal in the UK, although there are certain requirements and prohibitions that must be complied with.
For example, the surrogate parents cannot pay the surrogate for having their baby. This is because surrogacy through commercial means is illegal in the UK, where it is an offence for an individual to act on a profit-making basis to facilitate surrogacy for another person. It is also a criminal offence for a person to advertise that they are willing to act as a potential surrogate or for the intended parent(s) to advertise that they are seeking a surrogate.
Additionally, it is illegal for an agency to organise surrogacy for another person for profit. As such, any organisation that facilitates a surrogacy arrangement must do so on a non-commercial basis, otherwise risk being prosecuted for breaking the law. However, there are a number of altruistic organisations in the UK that can lawfully assist potential surrogates and intended parents that are thinking about embarking on the surrogacy pathway.
Surrogacy rights of the intended parents
If parents use a surrogate to have their child, the surrogate will be the child’s legal mother at birth. Equally, if the surrogate mother is either married at the time, or in a civil partnership, their spouse or civil partner will legally be the child’s second parent at birth, unless that person did not give their permission for the surrogacy arrangement to go ahead.
After the baby is born, the surrogate parents will need to apply to the court for a parental order to become the child’s legal parents.
The parental order process involves the family court and a court-appointed social worker, providing a valuable safeguard for the best interests of the child. The intended parents can begin the application process to obtain legal parenthood from 6 weeks up until 6 months after the birth.
In practice, it is usual for a child to be cared for by the intended parent(s) from birth, with the surrogate’s consent, and the subsequent court process is normally straightforward.
If the conception in a surrogacy arrangement took place in a licensed clinic and the appropriate consent forms were completed at that time, provided the surrogate mother is not married, the intended parent who provided the sperm for the surrogate baby can be registered as the legal father on the birth certificate. However, a parental order would still be necessary to transfer the legal parenthood of any second intended parent.
If the intended parent or parents are not genetically related to the child, applying for adoption will be the only way that they can become the child’s legal parent(s) in the UK.
Legal rights of surrogates
A surrogate may or may not be genetically related to the child that she carries for a couple. However, whenever a woman gives birth to a child, she will be considered the legal mother of that child under UK law, even when using a donated egg. This means that when the child is born, the surrogate will be legally responsible for that child, unless and until they agree to give the child up to the intended surrogate parents and the court makes an order.
The surrogate will remain the legal mother of the surrogate child from birth until legal parenthood is transferred to the intended parents through a parental order. If the surrogate mother is either married or in a civil partnership, her spouse or partner will also assume legal parenthood status of the baby from birth until the parental order is made by the court.
Workplace rights of surrogates and surrogate parents
In the context of workplace rights, every pregnant employee has a right to 52 weeks’ maternity leave. What a surrogate mother does after the baby is born does not affect their legal right to this period of leave.
The surrogate does not have to take the full 52 weeks, although they must take 2 weeks’ leave following the birth, or 4 weeks if they work in a factory, to ensure they can rest and recuperate. The earliest that maternity leave can be taken is 11 weeks prior to the expected week of childbirth, unless the baby is born early.
The expectant mother may also be entitled to statutory maternity pay (SMP). SMP for eligible employees is paid for up to 39 weeks, calculated as 90% of their average weekly earnings before tax for the first 6 weeks, plus £172.48 or 90% of their average weekly earnings, whichever is the lower, for the remaining 33 weeks.
When it comes to workplace rights for any intended parent(s) using a surrogate, equally they may be eligible for adoption pay and leave and paternity pay and leave. Statutory adoption leave is 52 weeks, although only one person in a couple can take adoption leave, where the other intended parent can usually get paternity leave instead. Adoption leave can start the day after the child is born when using a surrogate to have a child and, as with SMP, statutory adoption pay is paid for up to 39 weeks at the same rate as SMP.
Importantly, if the surrogate parents are not eligible for paid adoption leave, they may instead be able to take parental leave or annual leave.
Can surrogates get paid in the UK?
Surrogate mothers cannot get paid to have a baby for someone else, although they can be reimbursed for reasonable expenses relating to the pregnancy.
Can surrogates claim costs in the UK?
Even though the surrogate parents cannot pay the surrogate for having their baby for them, the legal framework in the UK still allows for a surrogate mother to receive reasonable pregnancy-related expenses from the intended parent(s), as assessed by the family court.
When an application is made for a parental order after the child’s birth, the court will assess what has been paid to the surrogate, where the intended parent(s) will be required to disclose how much has been paid and what for. If the court thinks that the intended parent(s) have paid in excess of reasonable expenses, then it will need to make a decision whether to authorise these additional payments retrospectively to make a parental order.
As a general guide, the court may accept the following items as expenses:
- the surrogate’s loss of earnings, to the extent not covered by her employer
- the surrogate’s civil partner/spouse’s loss of earnings
- additional childcare to support the pregnancy and clinic/antenatal visits
- help with additional cleaning to support the pregnancy
- additional food and other supplements
- additional classes or therapies to support the pregnancy
- travel and accommodation before, during and shortly after pregnancy
- maternity clothes
- a modest recovery break for the surrogate and her family
- other incidental expenses that relate to the treatment and pregnancy.
It is advisable for the intended parent(s) and proposed surrogate to discuss and agree an estimate of expenses in advance of entering into any surrogacy arrangement. The parties should also keep an accurate record of what has been paid and the purpose of any payments, so that this information can be made readily available to the court.
Surrogacy agreements
A surrogacy agreement is a document typically drawn up between the surrogate and intended parent(s) prior to conception, setting out how the parties intend to conceive and manage the pregnancy and birth, plus care for the child post-partum. This is so that the intended parent(s) and surrogate can clarify how they would like the arrangement to work, including payment of reasonable expenses and when payments will start and stop.
However, even though surrogacy is legal in the UK, any surrogacy agreement cannot be enforced under UK law, even if the document has been signed by all parties and the intended parents have covered all the surrogates’ expenses. The agreement is simply a statement of intention about how the arrangement will work. This is because the birth mother is legally classed as the child’s mother and, as such, if she changes her mind about giving up that child, even if the egg was not hers, the surrogate parent(s) will not be able to insist on what was agreed. The agreement will not be legally binding. Equally, if the intended parent(s) no longer want to take care of the child, then parental responsibility will remain with the surrogate as the legal parent of the baby and her partner if she has one.
Legal parenthood can only be transferred by either a parental order or adoption after the baby is born. If there is a disagreement between the intended parents and surrogate about who the legal parents should be, the courts will need to make a decision based on the best interests of the child. The court will take into account who the child is genetically related to, and may have regard to what was agreed in writing, but the child’s lifelong welfare shall be the court’s paramount consideration. Fortunately, most surrogacy arrangements in the UK are straightforward, where legal disputes between the parties are rare.
Applying for a parental order
To apply for a parental order in England and Wales, the surrogate parent(s) must complete Form C51 (Application for a Parental Order) and file this with their local family court, paying a fee of £232. They will also need to provide the child’s full birth certificate. Importantly, the process to apply for a parental order and legal parenthood is different if the applicant(s) live in Scotland or Northern Ireland.
Having received the relevant paperwork, the court will set a date for the application hearing and issue the applicant(s) with Form C52 (Acknowledgement). This must be given to the surrogate mother and any spouse or civil partner. The surrogate and anyone else who is legally a parent of the child must also agree to the parental order by completing Form A101A (Agreement to the making of a parental order of my child).
Following the first hearing, the court will usually ask the intended parent(s) to submit a statement setting out how they fulfil the parental order criteria, together with evidence in support. The court will also ask Cafcass (Children and Family Court Advisory and Support Service) to provide a ‘parental order reporter’, representing the interests of the child, to help the court reach a decision. This will usually involve the parental order reporter meeting with the intended parent(s), observing them with the child, and ensuring that the surrogate and any spouse or partner freely consents to the application. The reporter will submit the results to the court in a ‘parental order report’ prior to the final hearing.
The intended parent(s) can apply for a parental order with a partner or on their own. If the surrogate parents are applying for a parental order together, one of them must be genetically related to the child, as either the egg or sperm donor. They must also be married or in a civil partnership or, alternatively, living together in an enduring relationship. Additionally, to be eligible to apply for a parental order, the parent(s) must have the child living with them and reside permanently in the UK, or the Channel Islands or Isle of Man.
If just one person is applying on their own, they must again be genetically related to the child, have the child living with them and reside permanently in the UK, Channel Islands or Isle of Man. In either case, when applying to the court to become the child’s legal parent(s), the application must be made within a period of 6 months of the child’s birth.
Surrogacy Rights FAQs
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Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
