Posted by familylaw on 12th March 2019
Last updated 17th August 2022

Over past few weeks we have seen the struggle that Aaron and Robert from Emmerdale have gone through to achieve their dream of becoming parents via surrogacy. Although harrowing to watch, their experience is not uncommon. This storyline serves as a reminder that the road to having a child through surrogacy is not always an easy one and underlines why it is important to have the benefit of legal advice.

Surrogacy is legal in the UK – FACT

This is correct. The Warnock Report defines this as “the practice whereby one woman carries a child with the intention that the child should be handed over at birth”.

I can pay a surrogate for their services – FICTION

Commercial arrangements for surrogacy in the UK is prohibited by law and punishable as a criminal offence. This means that there are reduced numbers of surrogates in the UK so couples are forced to look elsewhere for potential surrogates. In other countries, payment is often made as part of a commercial arrangement.

As the couple who commission the surrogate, we automatically have Parental Responsibility upon birth of the child – FICTION

The surrogate mother has Parental Responsibility (PR) and is considered to be the child’s legal mother. If the surrogate mother is married, her husband will also have Parental Responsibility. This will remain the case until the parents who have commissioned the surrogacy are granted a Parental Order by the Court.

A Parental Order gives us Parental Responsibility – FACT

This is true. A Parental Order confers Parental Responsibility to the parents who have facilitated the surrogacy. This means that the child is treated as the child of that couple and not the child of any other person.

If we get a Parental Order abroad, we do not need to apply for a Parental Order in a UK Court – FICTION

There are no international treaties or reciprocal agreements that govern surrogacy. You will always need a Parental Order from the UK Court, regardless where the child was born.

We can apply for a Parental Order because the child is living with us – FACT AND FICTION

This is both fact and fiction because having the child living with you is only one of the criteria of acquiring a Parental Order. These are the full criteria:

  • The application must be made by two people who are married, in a civil partnership or in an enduring family relationship.
  • One of the applicants must be biologically related to the child.
  • The child must be living with the parents.
  • At least one of the applicants must be domiciled in the UK.
  • No money or benefit must be given or received, other than for expenses, unless the court authorises such payment (this can be done retrospectively).

Legal advice will help – FACT

If you are thinking of surrogacy, it is vital to get legal advice about the pitfalls before you go further into it. This is important not only if you are going to be the commissioning parents but also if you are interested in being a surrogate yourself.

At The Family Law Company, we pride ourselves on being able to give straightforward and practical advice to make the legal process less stressful.

Contact our Surrogacy team for further information on 01392 421 777.





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