An overview of creating a modern family via surrogacy in the UK

Surrogacy is one of the most high-profile types of assisted reproduction. It is described by some as ‘an extraordinary blessing or gift’ especially by those who are unable to have children.

Welcoming a child into the world can look different family to family that is why BTO have tailored our legal advice to suit all. We are aware that not everyone’s journey into parenthood is the same and each case is unique. It is therefore important when thinking about surrogacy to seek legal advice at your earliest opportunity.

What is surrogacy?

Surrogacy is essentially when someone carries a baby for a couple or a single person who are/is unable to carry the baby themselves for a wide variety of reasons and scenarios. Example one, perhaps a close family member or friend agrees to carry a baby for her sister or best friend who has fertility issues. Scenario two, a female friend of a male same sex couple agrees to carry a child for that couple or scenario three, a married couple (who can be same sex or heterosexual) wants a child and look abroad for a surrogacy match. Whatever your reasons – BTO family and surrogacy law specialists are here to support you all the way.

There are two types of surrogacies: gestational surrogacy (where IVF is used to implant an embryo made of the intended parents’ sperm and egg or an intended parent’s sperm or egg and a donor i.e. there is no genetic link to the surrogate) or traditional surrogacy (which uses the surrogate’s egg and the intended father or sperm donor’s sperm).

Surrogacy is legal in the UK so long as it is not a commercial arrangement. Surrogates may only receive “reasonable expenses” for their efforts, and any payment of remuneration can be and has been challenged in Court.

Why should you seek legal advice at your earliest opportunity?

Surrogacy contacts are unenforceable and it is therefore imperative to seek legal advice at the very outset of any proposed surrogacy journey. Surrogacy followed by the granting of a Parental Order requires at least one of the intended parents to have a genetic link with the child.

What is a Parental Order and when should I get one?

Once a child is born through surrogacy, legally the mother of the child is the surrogate and the father or “other parent” is her husband/wife (if she is married) or civil partner. For the intended parents to be able to take full legal parenthood over the child, they must be granted a Parental Order through the Courts.

This process is governed by the Human Fertilisation and Embryology Act 2008.

The following conditions must be met in order to secure a parental order: –

1. The child was born to a surrogate using assisted reproduction (without the use of intercourse);
2. The genetic material of one of the intended parents has been used to create the embryo;
3. The application must be made within six months of the date of the birth;
4. The child lives with the applicants at the time of the application and at the time when the order is made;
5. At the time of the application and the time the order is made, either applicant (or both) are domiciled in a part of the UK;
6. Both applicants are at least 18 years old;
7. If the applicants are a couple, the parties must be either married, civil partners or living as partners in an enduring family relationship (N.B. it is now possible for a single person to become a parent through surrogacy);
8. The surrogate and her spouse or civil partner, if there is one, have to have consented and they must give their consent at least six weeks after the birth (the “cooling-off period”); and
9. The Court must be satisfied that no money or other benefit, other than “expenses reasonably incurred” has been paid either for the surrogacy itself or for arranging the agreement.

It should be noted that the granting of a Parental Order is not automatic.

Case study

The above conditions must be met and the Court must be satisfied that the granting of the Order is appropriate in the circumstances of the case. However, the case of AB and XY Petitioners [2023] CSOH 46 resulted in a more relaxed interpretation of adhering to the conditions set out in the legislation.

In this application for Parental Orders, a number of issues had arisen.

Firstly, the applications were lodged twenty-one months after the birth of the twins and secondly, the intended parents had separated and were living apart at the time that the applications were raised.

Lady Carmichael, when relaying her decision, highlighted the overriding duty of the Court to have regard to the need to safeguard and promote the welfare of the child throughout their life as the paramount consideration when making decisions. She therefore considered the Parental Orders should be granted despite the conditions not having been met.

Once a Parental Order has been granted, the surrogate’s (and her husband’s/partner’s) rights in relation to the child are extinguished.

What happens after the Parental Order has been granted?

Once a Parental Order has been granted by the Court, they will send written notification of this to the office on the National Records of Scotland but only usually after several weeks have passed to ensure there is no appeal lodged.

Once they receive the Parental Order from the Court, the information will be entered into the Parental Order Register and then the parents will be informed of this in writing and they will be advised as to how to order new certificates (likely online) with the new parental details.

It is worth noting that Parental Order certificates are only available from the National Records of Scotland as local Registrars do not have access to the Parental Order Register to issue extracts.

We offer a range of services to suit your needs when embarking on your surrogacy journey, either within the UK or abroad as outlined above.

At BTO our surrogacy service is bespoke. We will tailor our guidance to suit you.

We can provide legal guidance on how to represent yourself if you choose to do that, and also provide a full parental order fixed-fee package whereby we conduct the entire case for you if you would prefer to let us focus on the paperwork whilst you spend your time with your new bundle of joy.

What other legal services can BTO offer?

Our specialist private client and employment colleagues can also offer support with more specialised advice relating to the updating of Wills, and future planning. BTO are with you all the way, because we care and because we have personal experience of surrogacy. We know how important it is to ensure that all your legal affairs are in order and that you have the right legal guidance and support, prior to embarking on your surrogacy journey to protect your rights and that of your new child/ family.

BTO are proud to offer everyone, free Fertility Law Advice. Simply email your queries to fertilitylaw@bto.co.uk and one of our solicitors will respond free of charge within 7 days. After an initial review, if we believe the matter is more complex we are happy to invite you in for a 1 hour consultation at a rate of £400+VAT.

We also have a set of fixed fee packages for parental orders and donor agreements to help keep costs manageable for clients. If you have any more questions, please do not hesitate to reach out to speak to Lesley Gordon – Head of Family Law at BTO.