Surrogacy Solicitors

A surrogacy agreement sets out the arrangements of your surrogacy. There’s no legal requirement to have a surrogacy agreement in England or Wales, but they are always recommended and in some countries they are compulsory.

In some countries, your surrogacy agreement will create a legally binding agreement between the Intended Parent or parents and Surrogate. In England and Wales, a surrogacy agreement is not legally binding, and it does not determine who will be or can be the legal parent or parents of the child, but it is still an important document.

If disagreements happen further down the line, the surrogacy agreement is evidence of your original intentions, and can help the court understand what had been planned, what has changed and why. It also helps to prove that everyone involved fully understood their role in the arrangement, and gave their full consent.

The process of drafting a surrogacy agreement also helps to make sure the Intended Parent or parents and Surrogate are on the same page, and that you all have the same expectations about how it will all work. This can help avoid disagreements further down the line.

As the law stands, Lawyers and Solicitors cannot negotiate or draft surrogacy agreements, but they can help you understand the important aspects of surrogacy arrangements and the things you will need to consider.  A surrogacy agreement should be prepared before conception takes place.

Having a surrogacy agreement:

• Gives you an added layer of protection that informal agreements won’t
• Makes sure that everyone is on the same page about what to expect in the short and long term
• Reduces the risk of disagreements later on
• Makes sure that those involved in the arrangements are the right fit, before you commit

There are two types of surrogacy:

Host / Gestational Surrogacy – this is where the surrogate is not biologically related to the baby, so either the Intended Mother or donor eggs are used.

Straight / Traditional Surrogacy – this is where the surrogate is biologically related to the baby.

English Law applies the same, whichever type of surrogacy is used. Regardless of biological connection, the surrogate will always be the legal mother when the child is born, and until legal parenthood is transferred by a Parental Order.

Who is the child’s second legal parent depends on a number of factors, including whether the surrogate is married or in a civil partnership, and the biological link to the Intended Father.

It is important to understand that even if your surrogacy arrangement has taken place abroad, English law on legal parenthood will still apply when you return home to the UK. That means you still need to apply for a parental order, even if you are already classed as legal parents in the country your baby was born, or if you are already named on a foreign birth certificate.

Parental Responsibility is the right to make key decisions about a child’s welfare and upbringing, and the right to information about the child. Often, Intended Parents will not have Parental Responsibility when the baby is first born.

In many cases, this is resolved by consent forms and co-operation with your surrogate. In some cases, it becomes important for Intended Parents to obtain Parental Responsibility before the main Parental Order is made.

Our specialist Family Lawyers can help you make the right application to fit the circumstances, when the need arises.

Whether your baby has been born in England or Wales, or abroad, you will need to transfer legal parenthood in this country after the baby is born.

In some countries, legal parenthood is already given to an intended parent before birth, but you will still need to obtain legal parenthood when you get back home to the UK.

In England and Wales, as the law stands, it is not possible to re-assign legal parenthood until after the baby is born.

This is done by a special order, called a Parental Order.

A Parental Order has the effect of bringing to an end the legal parenthood and parental responsibility of the surrogate (and if applicable, her spouse or civil partner), and granting legal parenthood and parental responsibility on the intended parent or parents.

There are a set list of criteria that anyone wanting to obtain a Parental Order must meet. It is a requirement that all the criteria are met, so it's vital to get legal advice tailored to your specific circumstances before you embark on a surrogacy arrangement, so you can make sure you won't meet any unexpected obstacles that could stop a Parental Order being made.

The criteria any intended parent or parents must meet are known as the “s54 Criteria or Checklist”.  They are:

1. The child must have been born to a woman acting as surrogate and in accordance with an agreed surrogacy arrangement. The agreement to the surrogacy arrangement needs to take place before conception.
2. Conception must have been through artificial means. If conception takes place through intercourse, it is not a surrogacy arrangement and the intended parent or parents will not be eligible for a Parental Order.
3. If the Intended Parent is a single parent, he or she must be biologically related to the baby. If the Intended Parents are a couple, only one of them need have a biological connection.
4. The intended Parent or parents must be over 18 years old.
5. If the Intended parents are a couple, they must be in an “enduring relationship.” There have been a number of cases over time which have explored what this means, and what circumstances will be considered an enduring relationship.
6. The application for a Parental Order should be made before the baby turns 6 months’ old, otherwise the permission of the Court will need to be obtained.
7. The baby should have his or her home with the Intended Parent or parents when the application for a Parental Order is lodged at Court, and when the Parental Order is made. What is classed as “having a home with” can vary in different circumstances.
8. If the Intended Parent is a single parent, then they must be domiciled in England or Wales. Domicile is a technical legal concept linked to where is classed as your permanent home. It is different to nationality, residence and citizenship.  If you have international links, it is especially important to obtain legal advice before you enter a surrogacy arrangement, to make sure you can demonstrate that you have UK Domicile.
9. The surrogate must give her free, informed and valid consent. As the law stands, there is no provision in English law for the Court to override a surrogate’s refusal to agree to a Parental Order being made, but it is a very rare occurrence.
10. The surrogate cannot have been paid more than reasonable expenses, unless any additional payments are then sanctioned by the Court. In reality, expenses are interpreted generously, and where additional payments have been made in a jurisdiction where commercial surrogacy is permitted, the court will sanction those payments, so long as they are in keeping with usual amounts.

The Court will then consider all the circumstances of the case, and whether it is in the child’s best interests for the order to be made.

The presumption is always that it will be very unusual circumstances only where the Court will consider it would not be appropriate to make the Parental Order, if the s54 criteria are met.

Intended Parents always have to attend Court hearings relating to their Parental Order application. Sometimes, the Court likes your baby to present when the Parental Order is made.

If your surrogate consents to the Parental Order, then usually, she won't need to attend court (though she is allowed to if she wants to) and her role is usually limited to completing some forms.

Going to Court does seem daunting, but Parental Order cases are usually straightforward and there will be no complex legal or evidential arguments. We can help you through the whole process – having a specialist surrogacy lawyer can help you to feel more in control of the situation and frees up your time to attend to the demands of your new baby.

How long it takes to get a Parental Order varies. It depends on:

• How quickly the Court can process your application
• How long CAFCASS need to prepare their parental order report
• When the court has a free appointment for your hearing. 

Domestic surrogacy arrangements (those taking place in England and Wales only) are dealt with by Magistrates or District Judges, and tend to progress more quickly.

All international surrogacy arrangements, or cases where there are complexities, are dealt with in the High Court and take on average 6 to 12 months.

If problems arise that mean you cannot get a Parental Order, there are other options that can resolve who cares for the baby, and who has decision-making powers.  Which orders are the right ones, depends on the circumstances on the case.  Other options include:

• Adoption Order
• Special Guardianship Order
• Child Arrangement Order
• Specific Issue Order or Prohibited Steps Order
• Wardship - the Court will have to authorise certain aspects of the child's upbringing until they are an adult

Problems are rare, but they do happen. Our specialist team have been involved in a number of key Court cases that have looked at how to resolve problems that have arisen when a surrogacy arrangement or Parental Order application has gone wrong.

They are proud to have helped push the boundaries of the interpretation of the s54 criteria to help clients gain legal parenthood.