National Surrogacy Week 2022: common misconceptions and FAQs

National Surrogacy Week is running this week, from Monday 1 August – Sunday 7 August. The aim of this campaign is to highlight best practice and raise awareness of surrogacy in the UK.

Surrogacy is becoming an increasingly popular route to parenthood in the UK. However, there are many myths and misconceptions surrounding the topic that need to be resolved.

Common misconceptions

‘Surrogacy is illegal in the UK’

This is false. Surrogacy is not illegal in the UK. However, there are certain restrictions preventing commercial surrogacy and advertising for surrogates.

‘I can ask a solicitor to draft a surrogacy contract for me’

This is also false. It is illegal for a solicitor to receive payment for drafting or negotiating surrogacy contracts. Despite this, it is important for surrogate mothers and intended parents to enter into an agreement that reflects their wishes and intentions. This will not be legally binding but can help to clarify what is expected out of the arrangement.

Frequently asked questions around legal issues

How can I be considered the child’s legal parent?

The surrogate mother will automatically be the child’s legal mother at birth. If she is married or in a civil partnership, her partner will be considered the second legal parent. If the surrogate is unmarried and the intended father’s sperm has been used, he will be the second legal parent.

In order for both intended parents to become legal parents, a parental order should be made. You can apply for a parental order within six months from the date of birth of the child, but it is best for this to be done as soon as possible.

It is important to note that a child’s initial birth certificate will reflect the legal position at birth. If a parental order is obtained, the court will issue a new birth certificate naming the intended parents as the legal parents.

I have no genetic link to the surrogate child, can I still apply for a parental order?

One of the applicants must have a genetic link to the surrogate child. If you are a single applicant, or a joint applicant, but neither of you has a genetic link to the surrogate child, you are not able to apply for a parental order.

If this is the case, you may wish to consider an adoption order. This would essentially give you the same result as a parental order as parentage could be transferred.

Another option would be to apply for a child arrangements order. This would determine where the child is to live and who has parental responsibility. However, it is important to note that a child arrangements order cannot transfer legal parentage. The surrogate mother would still be listed on the child’s birth certificate.

What can I do if the surrogate mother is refusing to provide consent to a parental order?

It is possible for the surrogate mother to change her mind after birth and retract her consent to give up the baby. The surrogate mother may also refuse to consent to a parental order. This would prevent the intended parents from obtaining a parental order and the surrogate mother would remain the child’s legal parent.

The family court has the ability to intervene in the event of such a dispute to determine the child’s living arrangements via a child arrangements order.

How much can I pay the surrogate mother?

Whilst it is illegal in the UK to arrange surrogacy for profit, parents are permitted to remunerate the surrogate for their ‘reasonable expenses’ only.

If payment has been made, an issue may arise following the birth of the child if the parents wish to apply for a parental order. As part of the parental order application, the court has to decide whether the surrogate has received anything more than ‘reasonable expenses’. Whilst paying more than reasonable expenses is not illegal, it may cause difficulties when the parents seek a parental order, as the court would need to consider retrospectively approving any payments above reasonable expenses.

‘Reasonable expenses’ are considered by the court on a case-by-case basis.  

Isobel Hubner, paralegal in our Family and Matrimonial team, contributed to this article.