Some couples who would love to have children together find it difficult or impossible to conceive. Arranging for a surrogate to carry their baby can be a wonderful way to make the dream of starting a family come true. However, it is important for all parties to be aware of the legal aspects of surrogacy.
Surrogacy is the process of a woman carrying a baby for another person. Straight surrogacy (also known as genetic or traditional surrogacy) involves sperm from the intended father and an egg from the surrogate.
Host surrogacy (also known as partial or gestational surrogacy) involves the implantation using the gametes of at least one of the intended parents plus the gametes of the other intended parent or a donor, if required, such as an embryo created using either the eggs and sperm of the intended parents or a donated egg fertilised with sperm from the intended father.
Under English law, the woman who gives birth to the child is always regarded as the child’s mother (even if a gestational surrogate). If the surrogate is married, then her husband is the legal father.
Parental orders to acquire legal status
Intended parents must obtain a parental order to acquire legal status to be recognised as the legal parents for their child. This is the bespoke order that must be sought for children born through surrogacy to give parental rights to the intended parents and end the surrogate’s (and her spouse if married) parental rights.
The application must be made within six months of the child’s birth. For it to be successful, both the surrogate and her spouse must consent to the making of an order. The gametes of at least one of the applicants must have been used to create the embryo.
The intended parents must be over 18, be married, in a civil partnership or in an “enduring family relationship”. The child’s home must be with the applicants. One of the applicants must be domiciled in the UK.
There was a change to the law in January 2019 to allow a single person to apply for a parental order, providing that their gametes were used and the above criteria are met.
The court must also consider the child’s lifelong welfare when making an order.
Some of the issues involved in acquiring legal status can become complicated, but we can guide you through the procedure from start to finish.
We can help you understand all the legal issues relating to surrogacy in both domestic and international cases and alert you to the difficulties that may arise.
We are specialists in all aspects of children’s law and have a team of five solicitors who have the knowledge and expertise needed to provide an holistic and well-rounded service on all family law matters, including surrogacy.
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Tel: 01582 514315