Legal Considerations When Looking at Surrogates

Starting a family is a major life decision, and not one that any family takes lightly – whether or not news of an incoming child is something of a surprise to them. For some, though, parenthood is harder-found and harder-fought than others. There are various reasons, with varying degrees of commonality, for which parenthood might not fall into someone’s lap.

Those reasons are often personal and private, whether relating to medical issues or simply the biological facts of certain relationships – reasons which, one way or another, make it painful, dangerous or impossible for a couple to conceive and bring a child to term. These reasons are reasons for which surrogacy remains a viable option for families hoping to grow in spite of complications – but surrogacy isn’t a simple, settled legal matter.

Legal Framework in the UK

Surrogacy is somewhat legally enshrined in the UK, by two key acts of legislation: the Surrogacy Arrangements Act 1985, and the Human Fertilisation and Embryology Act 2008.

The former is the primary piece of legislation concerning surrogacy, and outlines some key protections and terms – but, crucially, does not make surrogacy agreements legally binding statuses. This means that surrogacy is effectively a civil matter, and one which requires trust between all parties.

The latter, meanwhile, served to clarify the parental order process (by which a birth family transfer parenthood), with a future amendment to the same allowing single parents to receive parenthood via parental order.

Parental Orders and Legal Parenthood

Parental orders are the means by which a family becomes the parents of a surrogate baby. By law, the surrogate mother is the baby’s legal parent by virtue of being their birth mother, and hence named parent on the birth certificates. The second named parent will be their spouse, unless they are single – in which case, it will be someone with a direct genetic link to the baby.

A parental order, then, is a petition to a UK court for the transfer of parental rights over to an eligible family – comprising someone with a genetic link to the child. The surrogate mother must freely consent to this transfer, the child must already be living with the intended parents and the order must be placed between six weeks and six months of the baby’s birth.

Rights and Responsibilities of Intended Parents and Surrogates

This petitioning of the court, and the resulting six-to-nine-month wait that can ensue before judgement is passed, can create difficult situations for surrogates and for the intended parents of a surrogate child – situations which, lacking clear legal guidance, can make the engagement of children’s solicitors a necessity. On the intended-parent side of the equation, there is the worry that the surrogate mother could change their mind, and wish to keep the child despite prior agreements.

Conversely, surrogate mothers worry that intended parents could back out before the parental order is given, leaving them with legal responsibility for a baby they did not want. These are solutions with no easy answer, particularly where the specifics of each case – including the agreement in question and any fair recompense – are considered issues for family court.

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