Surrogacy is permitted in the UK. The only ban on surrogacy relates to third parties making a business of organising surrogacy arrangements. The law therefore does not ban all surrogacy arrangements, only those which are negotiated by third parties on a “commercial basis”.
The commissioning parents will need to obtain what are known as “parental orders” in respect of children born to a surrogate mother, provided certain conditions were fulfilled. Amongst such conditions the commissioning parents must have the child living with them at the time of their application to the Court and the application must be made to the Court within six months of the birth of the child. In addition, the surrogate mother and her husband must agree to the order being made.
The law makes clear that the surrogate parents are the legal parents until such time as a parental order is made.
Once a parental order is made, it is very similar to an adoption order in that it would be presumed that the child was born to the commissioning couple. A new birth certificate is issued in the commissioning couples’ names as parents in substitution for the birth certificate originally given to the surrogate parents.
If for some reason a Parental Order was not made, and no other order was made in place of it, the law would regard the surrogate parents as the parents of the child.
Surrogacy Agreements
In surrogacy matters a clear statement of intent or contract (i.e. agreement) between commissioning and surrogate parents setting out the surrogacy arrangements is helpful. The main point to note here of course is that the agreement/contract is not enforceable in a Court of law. However the agreement would at least be some evidence of the intentions of the parties were there to be any doubt about this at a later date.
Some clinics insist on an agreement in place before commencing treatment or similarly the hospital where the bay is to be born may require to see a copy of the surrogacy agreement before the birth.
Same Sex Couples
On the 6th April 2010 the law relating to same sex couples applying for a Parental Order following surrogate changes.
Until now the legal recognition of a surrogate child’s parents has differed for those parents who are married and those who are not, including same sex couple regardless of whether they have entered into a civil partnership. That anomaly has been addressed, and as from the 6th April 2010, a change in the law will allow unmarried and same sex couples to apply for an Order known as a Parental Order, thus removing the present restriction that only enables married couples to apply for such an Order.
There are other conditions that must be satisfied to secure a Parental Order to be made.
