Routes to parenthood: surrogacy
Surrogacy is when a woman has a baby with the intention of given up her parental rights to a couple who are intended parents. Under British law, single people cannot parent through surrogacy but since 2010 same sex and unmarried couples have been able to do so. For cis-gender gay and bisexual male couples (and other LGBT people who produce sperm), surrogacy can be a route to having a child who is biologically related to them. However, surrogacy is tightly controlled in the UK and the legal situation does make it complicated for prospective surrogate parents. If you are considering surrogacy as a route to parenthood you should get specialist legal advice.
Unlike with co-parenting, couples who have a child through surrogacy assume full parental responsibility for that child. Click here for more information on co-parenting arrangements.
In the UK it is unlawful for you to advertise that you are looking for a surrogate mother, or for you to pay a third party to find you one. However, not-for-profit organisations like COTS and Surrogacy UK can help introduce intended parents to prospective surrogate mothers. You also are allowed to use a friend, acquaintance or family member as a surrogate. It’s also unlawful for you to pay a woman to act as a surrogate but you will be expected to meet reasonable expenses for her during the pregnancy (such as loss of earnings, travel, maternity clothing, etc) as well as paying for all medical expenses if a fertility clinic is used.
There are two types of surrogacy: ‘traditional’ surrogacy, where the surrogate mothers own egg is fertilised with donor sperm, and ‘host’ surrogacy, where the surrogate mother is impregnated via IVF with a donor egg that has been fertilised with donor sperm. Either method allows you or your partner to be the sperm donor.
Whether she becomes pregnant through host or traditional surrogacy, the surrogate mother is recognised as the child’s legal parent at birth and if she is married or in a civil partnership her partner is automatically recognised as the child’s other legal parent. Parental exist to address parenthood issues following surrogacy. Like an adoption order, a parental order reassigns parenthood, extinguishing the parental status of the surrogate parents, and conferring full parental status and parental responsibility on both Intended Parents.
For a Parental Order to be granted the following are all required:
· Both Intended Parents (IP) must be over eighteen
· At least one IP must be biologically related to the child
· At least one IP must be domiciled in the UK, Channel Islands or Isle of Man
· The IPs must be in a stable, long term relationship.
· The conception must have taken place artificially (which can include home insemination)
· The child must have his/her home with the Intended Parents at the time of the application
· The surrogate mother (and her partner if she has one) must fully and freely consent to making the order. The surrogate mother cannot validly give her consent until the child is 6 weeks old.
In very rare cases, the surrogate mother changes her mind and decides that she does not want the child to be parented by the Intended Parents. Legally, she is the child’s parent until a Parental Order is granted. It is very rare for the surrogate mother to make this decision but as prospective parents through surrogacy you should be aware of this possibility.