Surrogacy and Legal Considerations for Same-sex Couples

What is surrogacy?

Surrogacy is where a woman carries a child for intended parents (or a single intended parent) and relinquishes her parental status upon the birth of the child. This is commonly an option for male same-sex couples and single men who wish to have a child without sharing responsibility with the child’s birth mother/s. It is also an option for single women and female same-sex couples who are unable to carry a pregnancy.

The legal considerations

Surrogacy is legal in the UK. However, the law prohibits third parties arranging surrogacy for profit and outlaws advertising for surrogates, so finding a surrogate can be challenging.  Once you have found a surrogate, any agreement you enter into is unenforceable under UK law.

Your surrogate is your child’s legal mother under UK law, regardless of where in the world your child is born. Who is treated as your child’s father is complicated, and depends on the circumstances including biology, your surrogate’s relationship status and where conception takes place.

So where do I stand?

The UK law solution is a Parental Order, which reassigns parenthood fully and permanently to you both, and extinguishes the legal status and responsibilities of your surrogate (and her husband, wife or civil partner). It also leads to the re-issue of your child’s birth certificate (or the issue of a first British birth certificate if your child is born abroad) naming you both as the parents. Same-sex parents have been able to apply for a parental order since 6 April 2010.

It is important for single fathers, as well as couples and single women, to obtain a parental order since without one their surrogate will remain their child’s legal mother and, if the child is born outside the UK, they will only have limited status in the UK to make parental decisions.

How can we help with your surrogacy?

When using a surrogate, a lawyer can be really beneficial. A lawyer will be able to help you acquire full parental rights for your child and can also help you with court hearings, preparing statements to support your application and gathering relevant documentation on the surrogate mother. Your lawyer will also be able to assist in drafting an agreement with your surrogate mother, should you choose to have one.

If you have an international surrogacy agreement, a lawyer will be able to help bring your child to the UK as quickly as possible and can help with immigration, nationality and passport applications. A lawyer will also be able to help you if you run into any issues with your surrogate.

Speak to our Family Law specialists

Should you need further advice, please speak to our Family Law experts on 01895 207819 or alternatively e-mail children@ibblaw.co.uk.