Posted by Helen Trott on 5th August 2020

This National Surrogacy week Helen Trott, who supports client through the surrogacy process, answers some frequently asked questions around this area.

What is surrogacy?

Surrogacy is the practice whereby one woman (the surrogate) carries a child with the intention that child will be handed over at birth to another couple (known as the commissioning, or intended parents).

Only couples can be intended parents in this country, single people cannot. Which I think seems a little outdated!

Commercial surrogacy arrangements are illegal in this country. The only method of payment that is permitted is that of incidental expenses.

What are the different types of surrogacy?

Partial – this is where the surrogate mother’s egg is fertilised with the sperm of the intended father (i.e. the partner of the intended mother).

Full – this is where the surrogate mother carries the already fertilised egg of either the intended mother or a donor. Hence the baby has no genetic connection to the mother.

Who are the child’s legal parents at birth?

The surrogate mother is deemed to be the legal mother, irrespective of whether she has any genetic connection to the baby. The surrogate mother automatically assumes parental responsibility when the child is born.

If the surrogate is married or in a civil partnership, the child’s second parent will be the surrogate mother’s spouse or civil partner, unless the partner did not consent to the surrogacy.

What is a surrogacy agreement?

This is a written agreement that sets out the intentions of both the surrogate and the intended parents, both throughout the pregnancy and following the birth of a child.

Whilst not legally enforceable as such, entering into an agreement is important as it means that there can be no misunderstanding as to the intentions of all the parties. This can prove useful if there becomes any dispute later on.

How do the intended parents become the legal parents?

The intended parents need to obtain a Parental Order from the Court. The application for a Parental Order must be made within six months of the child’s birth. Furthermore that Order can only be made if the surrogate mother (and her spouse/civil partner, if she has one) consent to it. Once a Parental Order is made, the intended parents then become the legal parents of the baby.

If the surrogate mother and her spouse/civil partner do not consent to it (and remember, a surrogate can change her mind after the baby is born), then the intended parents would need to consider an alternative application to the Court, for instance adoption.

If you are thinking of surrogacy, it is vital to get legal advice about the pitfalls prior to entering into it. This is important not only if you are going to be commissioning parents but also if you are interested in being a host mother. To discuss surrogacy and the law email [email protected] or tel: 01392 421777

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