A surrogacy case study
Surrogacy can be a life‑changing route to parenthood, but the UK’s legal landscape, particularly for international arrangements, is often far more complex than intended parents expect. A recent BBC article following one couple’s journey through surrogacy in the US highlights just how important it is to obtain specialist legal advice at every stage, from the initial surrogacy agreement (dealt with through a surrogacy agency) to preparing in advance for the application for the parental order, to the immigration and parental status issues that arise when a child is born abroad and brought to the UK.
As specialist surrogacy lawyers in Whitehead Monckton’s Family team, we offer support to individuals and couples navigating UK and international surrogacy. The case discussed in the BBC report reflects many of the challenges our clients face, especially around the recognition of legal parenthood and the steps required to bring a child home to the UK. Below, we explore the key legal points raised and what intended parents need to know.
Jamie and Adam’s journey highlights the importance of intended parents seeking legal advice throughout the process, both in relation to the surrogacy arrangements from a specialist surrogacy family lawyer, and from immigration lawyers regarding the status of a surrogate child born abroad. In this case, the couple’s baby was born in the US, which is a popular destination for intended parents, especially LGBTQ couples looking to start a family. Commercial surrogacy is legal (but highly regulated) in the US, but illegal in the UK, where only altruistic surrogacy is permitted.
International surrogacy arrangements in countries with different approaches to surrogacy law are not recognised in the UK. Intended parents will still need to make arrangements to be able to return from their country of choice to the UK and obtain a Parental Order on their return. As noted in the article, this is not always a quick and straightforward process. Early planning and advice can help ensure a smoother process for intended parents and help avoid distressing setbacks along the way.
As Jamie and Adam found, having their names on their baby’s birth certificate in the US did not matter. Although there was a valid contract in the US, (where, with a valid contract, most surrogate mothers have no parental rights), they were still required in the UK to obtain a Parental Order to gain parental responsibility for their child, as their surrogate was recognised by UK law as the child’s mother. This is the case both for children born to genetic surrogates (or ‘traditional’ surrogates, where the child is conceived using the surrogate mother’s own egg) and children conceived via gestational surrogacy (where the child is conceived using the intended parents’ egg and sperm or via a donor option).
Parental Orders are obtained from a Court under sections 54 or 54A of the Human Fertilisation and Embryology Act 2008 and transfer legal parenthood from the surrogate (and in many cases her spouse or civil partner if she has one) to the intended parents, extinguishing the legal parenthood of the surrogate and her spouse or civil partner, if any. It can be a complex procedure.
Following their experience, Jamie and Adam are petitioning to change the law in the UK, which they feel is outdated, so that intended parents can be recognised as their child’s legal parents from the child’s birth, as in the US.
In 2023, the Law Commission for England and Wales published a report outlining proposed reform to laws governing surrogacy in the UK. This included a proposed pathway for intended parents to become a legal parent(s) at birth, removing the need to apply for a parental order if pre-conception conditions were met. The surrogate would, however, have 6 weeks after birth to withdraw consent.
If the surrogate withdrew consent after agreement but prior to birth, the intended parent(s) would still need to apply for a Parental Order. If the surrogate withdraws consent after birth but prior to 6 weeks after the baby is born, the legal parentage would have already transferred to the intended parents, and the surrogate would have to apply for a Parental Order.
Regrettably, parliamentary discussion around law reform on surrogacy has been put on the back burner for the time being, but there is certainly recognition by intended parents, parents who have built their families though surrogacy, and experts in this area that there needs to be change.
As well as obtaining advice from lawyers on this complex area of family law, it is also worth seeking the help of a therapist or fertility counsellor who is equipped to help intended parents navigate what is often a very emotional process. We can advise on all areas of surrogacy law and put you in touch with our contacts to ensure you are supported throughout your journey to parenthood.
Surrogacy law is evolving, but for now the UK framework remains complex, particularly where children are born overseas. As Jamie and Adam’s experience shows, even the most carefully planned journey can involve unexpected legal hurdles, delays and emotional strain. Having the right professional support makes a significant difference.
At Whitehead Monckton, our specialist surrogacy lawyers advise intended parents on UK and international surrogacy, including the legal implications of overseas surrogacy arrangements, Parental Orders and ensuring all required evidence and documentation are in place to ensure a smooth return home.
