Legal implications of surrogacy

My partner and I cannot have a child naturally and want to consider surrogacy. What legal issues must I consider?

Surrogacy is the process by which a child is carried through pregnancy by a woman who has entered into an arrangement that the child and parental responsibility for it will be transferred to another person(s) at birth. Surrogacy arrangements are often attractive to heterosexual couples who are experiencing infertility, and same-sex couples.

Whilst surrogacy is legal in the UK, commercial surrogacy is not. No money or benefit must be given or received under the arrangement, other than for expenses.

One of the first issues to consider is whether to enter into a partial or total surrogacy arrangement. Partial surrogacy is the process whereby the surrogate mother is also the child’s biological mother. The child will be biologically related to the father (or sperm donor) and the surrogate mother.

In contrast, total surrogacy is where the woman carrying the child is not biologically related to the child. The embryo is carried by the surrogate and can be created from:

A genetic mother’s egg and genetic father’s (or donor’s) sperm.

A donor egg and genetic father’s sperm.

A donor egg and donor sperm.

Another important issue to consider is where to enter into the surrogacy arrangement. If you choose an international surrogate, it is vital that you seek specialist advice.

The surrogate mother (whether or not biologically related) is treated as the child’s legal mother until the court makes a court order in favour of the commissioning parents. The surrogate mother cannot simply surrender her parental responsibility. If the surrogate mother is married, the husband of the surrogate mother will be treated as the father of the child.

The permanent transfer of legal parenthood and parental responsibility to the commissioning parents can only be brought about by the making of an ‘adoption order’ or a ‘parental order’.

The application for a parental order must be made within six months of the child’s birth. The applicants must be aged at least 18 years old and either be married, in a civil partnership, or in an enduring family relationship (i.e. living together as a couple). Furthermore, at least one of the commissioning parents must have provided the genetic material used to create the embryo. Finally, the surrogate mother (and her husband, if applicable) must give free and unconditional agreement to the order being made.

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