Understanding Surrogacy Law
Surrogacy can be an amazing way to grow your family, but the law can be complicated. International surrogacy and adoption expert Jeetesh Patel explains what the law in the UK says about surrogacy, and what legal issues to look out for.
How does surrogacy work in the UK?
In the UK, non-commercial surrogacy arrangements are allowed under law, but currently the law does not recognise the intended parents right away. This means that the surrogate will be the legal mother of the child at birth, even if they are not biologically related. If the surrogate is married at the time of the child’s birth, then their spouse will be the legal father of the child at birth, even if he is not biologically related. This is quite an outdated position, and can be upsetting for the intended parents if they are unprepared for this.
It’s important to know your rights from the outset, and a legal expert can look at your specific situation and advise on the best path for you.
Jeetesh tells us, “It’s always best to take a personalised approach with surrogacy matters, so clients don’t have to worry about unforeseen issues in future and can start their family in the best possible position.”
“In straightforward cases, you and/or your partner, as the intended parent(s), will be able to obtain a Parental Order from the courts which transfers parental responsibility to you. This means you’ll be legally recognised as the baby’s parent, and the birth will be re-registered with your name(s) on the birth certificate. This includes unmarried couples, and now single parents thanks to updates to the law in 2019.”
This is a process that our team can guide you through as you prepare to become parents.
International surrogacy
One of the challenges some intended parents face is navigating an international element. In 2014, 37% of Parental Orders granted in the UK were for children born via an international surrogate, so the practice is common. However, because there is no international standard for surrogacy law or surrogacy agreements, complexities can arise. Even in the UK, there are different rules for England and Wales, Scotland and Northern Ireland.
Jeetesh has helped many couples and individuals bring their child to the UK and obtain a Parental Order.
“I’ve often assisted commissioning parents who want to bring a child into England who was born via an international surrogate. The process has the added element of immigration and nationality laws to consider, as well as the legal framework for surrogacy in the other jurisdiction."
"My advice for commissioning parents would be to make sure you speak to a lawyer before you draw up a surrogacy agreement, as this reduces the chance of delays or any impact on the welfare of your child.”
One often cited example in case law is Re X and Y (Foreign Surrogacy) [2009], where conflicting laws about surrogacy in Ukraine and the UK meant one set of twins were born without a nationality, and there were several delays in bringing them home and obtaining a Parental Order. Jeetesh encourages families to thoroughly plan the process when it comes to international surrogacy, and make sure you feel confident in your legal team – ask as many questions as you can.
Same Sex Couples and Single Parents
Jeetesh is also experienced in advising same sex parents, and says it is often necessary to take extra steps to make sure the rights of couples are protected. This is because of the varying international recognition of same sex marriage and civil partnerships when it comes to immigration laws and nationality status. If you have an international arrangement, the rules which set out your child’s nationality at birth may be different to rules in the UK, so it’s important to plan ahead as much as possible.
Updates to UK law mean that on the whole, domestic surrogacy arrangements are very straightforward for same sex and single intended parents. But it is still important to plan ahead, for example, in many cases one intended parent may be able to be named on the first birth certificate by attending the birth registration. This can have an effect on your child’s nationality status at birth, if you are in a multi-national relationship, as well as being a first step to bringing your baby home.
Payments and Expenses
Commercial surrogacy is not allowed in the UK, unlike some other countries. However, many couples do go abroad to find a commercial surrogate, a process which Jeetesh is experienced in guiding his clients through.
If you do have a surrogacy agreement in the UK, the law states that you can only pay ‘reasonable expenses’ to your surrogate. Because this term has never been properly defined, what constitutes reasonable expenses varies from person to person. It also means that when you’re applying for a Parental Order, the judge will look at all of the payments you have made and the details. This is why it is best to get legal advice before you exchange any money, to ensure you have the best chance of the application for Parental Orders to go smoothly.
Since surrogacy is such a personal journey, it is important to have a legal team who will take the time to understand you and your family. Jeetesh and the Laurus team will give you clear, bespoke advice on every aspect of your surrogacy, whether you are still in the initial stages or already a proud parent.
