Surrogacy in England and Wales is an increasingly popular route to parenthood and involves a woman carrying a baby for individuals and couples who can’t conceive or carry a child themselves. While it can be incredibly positive and life-changing, it’s also a complex process requiring careful planning and specialist advice from the outset.
Surrogacy agreements: not legally binding
In England and Wales, surrogacy agreements, even legal surrogacy agreements made overseas, are not legally enforceable. The courts will not compel a surrogate to hand over the child, even where all parties have agreed terms in advance or where the surrogate lives abroad.
Yet these agreements remain essential. Expectations must be clearly discussed and recorded at an early stage, and a well-prepared agreement (ideally through an authorised surrogacy agency), although not binding, can still provide a valuable framework, increase trust, and reduce the risk of a dispute later on. A surrogacy agreement would typically include:
Am I automatically my child’s legal parent?
The surrogate is always treated as the child’s legal mother at birth, even (which may surprise you) where she isn’t genetically related to the child. If the surrogate is married or in a civil partnership, her spouse/civil partner may also be treated as the second legal parent if they have consented to the arrangement, meaning that they will carry parental responsibility for that child.
Where donor sperm or eggs are used as part of a surrogacy arrangement or other form of alternative conception, conception should take place through a licensed clinic so that the donor isn’t treated as a legal parent. It may also be sensible to formalise the arrangement in a donor agreement.
To transfer legal parenthood, you (the Intended Parents) must apply to the court for a Parental Order after the child’s birth, ensuring you meet the criteria set by law. This order extinguishes the surrogate’s legal status, giving full parental rights to the Intended Parents. However, the surrogate cannot consent to the making of a Parental Order until at least 6 weeks after the birth.
Parental Orders
A parental order is an essential step in any surrogacy arrangement, even where the surrogate lives abroad. It’s a complex legal framework, with strict requirements which must be met. Obtaining specialist advice at an early stage is particularly important in international cases, not least to ensure that the child can lawfully enter and remain in the UK.
How Whitehead Monckton can support you
Specialist legal advice at an early stage can help you navigate the process with confidence, minimise risk, and focus on what matters most – your family. We can help Intended Parents by:
Our specialist surrogacy lawyers, Judith Harling-Coward and Daniel Bennett, will help you navigate your surrogacy journey with sensitivity, confidence and care. Kent Law Society recently awarded Judith the Trailblazer Award for her exceptional work in this area.
