Surrogacy law in the UK
Surrogacy is not illegal in the UK but there are some restrictions. For example, it is a criminal offence to advertise that you are looking for a surrogate or are willing to act as a surrogate. It is also an offence to broker a surrogacy arrangement on a commercial basis. COTS does not fall foul of these laws because it operates on a not-for-profit basis. Surrogacy agreements are unenforceable in the UK. That means that anything put in writing between a surrogate and intended parents at the outset is not legally binding if there is a dispute. Instead, the family court will decide what should happen on the basis of what is in the child’s best interests. Surrogacy disputes of this kind are, however, incredibly rare.
Who are the legal parents of a child born through surrogacy?
UK law says that, at birth, the surrogate is the legal mother of any child she has carried, even if she is not the biological mother. If the surrogate is married or in a civil partnership, her spouse is the father or other legal parent. This is always the case unless it can be shown that he/she genuinely did not consent to the surrogacy (which is very rare in practice). If the surrogate is not married, then one of the intended parents will be the other legal parent at birth. Usually, this is the biological father, but if conception takes place at a UK fertility clinic, the surrogate and the intended parents can instead choose for the intended mother (or non-biological father, if the intended parents are a same-sex couple) to be the other legal parent instead. A set of forms has to be signed at the clinic before conception to nominate someone other than the biological father to be the second parent. If the child is born in the UK, the surrogate is responsible for registering the birth. She will be recorded as the child’s mother, but she can register the baby with the intended parents’ surname. If she is married, her husband/wife will be recorded as the father/other parent. If she is single, whichever intended parent is the other legal parent can be registered on the birth certificate with her, if the intended parent attends the birth registration.
Parental orders are the legal solution for surrogacy in the UK. They permanently reassign parenthood to the intended parents and fully extinguish the responsibilities of the surrogate and her spouse. Once a parental order is made, a new birth certificate is issued naming the intended parents as the child’s parents and replacing the child’s original birth certificate.
To grant a parental order, the family court has to be satisfied that the order is necessary to safeguard the child’s lifelong welfare and that:
- The Intended parents have conceived the child using the eggs/ sperm of at least one of them and are both over 18.
- The conception took place artificially (which can include home insemination).
- The Intended parents are married, in a civil partnership or living as partners in an enduring family relationship.
- The application is made within six months of the birth.
- The child has his/her home with the intended parents at the time of the application.
- One or both of the Intended parents is domiciled in a part of the UK, Channel Islands or Isle of Man.
- The surrogate (and her spouse) consent to a parental order being made. The surrogate cannot validly give her consent until the child is 6 weeks old.
- No more than reasonable expenses has been paid to the surrogate, or the court agrees to authorise any payments. There is no definition in law of ‘reasonable expenses’ and in practice the courts take quite a flexible approach, often making parental orders in UK surrogacy cases where lump sums are paid. There is also now a long history of cases in which the court has authorised significant commercial payments for surrogacy in international cases.
Applying for a parental order
A parental order takes around 6 months to be granted. To apply, the intended parents must complete Form C51 http://hmctsformfinder.justice.gov.uk/courtfinder/forms/c051-eng.pdf and submit it to their local Family Court. If everyone consents and the child is born in the UK, the should be allocated to a lay magistrate or a very junior judge. If not, it will go to a more senior judge, usually a High Court judge.
On receipt of the form, the court will issue an acknowledgement form Form C52 http://hmctsformfinder.justice.gov.uk/courtfinder/forms/c052-eng.pdf and send it to the intended parents, who must send this to the surrogate (and her spouse). The surrogate parents then sign and return the forms to the court.
The court will appoint a parental order reporter from CAFCASS, whose role is to interview the intended and surrogate parents and to prepare a report for the court about whether the criteria are met and what is in the child’s best interests. There are usually one or two court hearings, and the final hearing is (assuming there are no complications) typically treated as a positive and celebratory occasion.
Do I need a solicitor?
In straightforward UK cases, most intended parents deal with the legal process themselves, although some find it helpful to seek guidance about what exactly to do. In more complex cases (for example disputed cases, international cases and cases where the intended parents may not meet all the criteria), legal representation or at least advice is sensible. The court process might be much more complicated, with detailed written evidence and legal argument required.
Things to do before your child is born
As well as making sure you understand your legal position and are prepared for the legal process you will need to go through, it is important for all those involved in a surrogacy arrangement to make or update their wills, in case someone dies unexpectedly during the pregnancy or before a parental order has been obtained. This ensures that the surrogate and her family are protected, and that the intended parents achieve some recognition as parents if the surrogate dies.
It is also usual for the intended parents to take out life insurance to protect their surrogate mother’s family in the event that she dies as a result of the pregnancy.
To minimise the risk of issues arising during the ‘limbo’ period before a parental order is granted, it is also sensible to be proactive in talking to everyone’s GP surgeries and the hospital where the child will be born.
International surrogacy involves much more complex legal issues. If you are a non-UK couple considering conceiving with a UK surrogate, you need to take care over the requirement that at least one of you is domiciled in a part of the UK. Domicile is an often misunderstood legal concept which relates not to where you are living or your citizenship status, but to where your permanent roots are. If neither intended parent is domiciled in a part of the UK, the court will not have the power to grant a parental order. This means that it will be difficult for you to secure your status as your child’s parents and to take your child out of the UK.
If you are a UK couple considering conceiving through surrogacy overseas, it is important to plan carefully for the immigration processes required to bring your child home (and to be aware of how long it is likely to take). You will also need a parental order if you wish to be treated as legal parents in the UK, even if you have a foreign birth certificate or court order which records you as the parents. Parental order applications after international surrogacy are heard by High Court judges in a much more formal process, and significantly more evidence and documentation is required.
This guide to UK surrogacy law was written for COTS.
Parental Order Information for IP's
Information for IPs
Applying for a Parental Order following Surrogacy
Documents Required and Process to Follow
Following surrogacy, the Intended Parents should apply for a Parental Order to transfer parental responsibility and rights from the surrogate (and her partner if she is married or in a civil partnership) to the Intended Parents. IPs can apply for the PO up to 6 months (and no later) following birth. Surrogate consent can be given from 6 weeks following birth.
Once granted, the birth certificate will be reissued with both Intended Parents listed at the legal parents.
Normally PO applications are dealt with by the junior-level Family Court (by magistrates). This is where the vast majority of COTS IPs have obtained their POs. Only if surrogacy was completed overseas or there are complications will the case be referred to the High Court.
To obtain the PO, the IPs must demonstrate to the Court that certain criteria are met and the order is in the child’s best interests. For further information on the PO process and criteria for obtaining the order, visit the gov.uk website: https://www.gov.uk/become-a-childs-legal-parent
- IPs complete form C51 (Parental Order Application) which can be downloaded from the gov.uk site above
- IPs send this form to the local family court (with 3 copies) and include baby’s original birth certificate, IPs’ marriage certificate (if married) and cheque for court fees (currently 215 GBP)
- The Court stamps this form and returns it to IPs with a copy. The court includes a C52 Acknowledgement for the IPs to send to their surrogate (and partner) for her/their completion and return to the court
- CAFCASS officer (called a Parental Order Reporter) is appointed by the Court
- CAFCASS Officer then visits IPs at home. At this visit, s/he may ask to see the following so it’s a good idea to have these documents prepared:
- COTS Surrogacy Agreement and Birth Plan
- Statement of expenses with bank records showing monthly and final payments to surrogate
- Copy of completed C51 and C52 forms
- Baby’s NHS red book
- Information on need for surrogacy, e.g. any medical condition
At this visit, the PO Reporter will enquire about the surrogacy journey and the baby’s life at home with the IPs.
- PO Reporter also visits surrogate (and partner) at home and observes their signing of consent for the making of the PO
- Based on the visits and conversations, the PO Reporter writes a report for the Court with a recommendation re: the PO.
- There will be one or two hearings at the Court. The IPs should attend but attendance by the surrogate is optional.
- Before the final (or only) hearing, IPs should make sure that the CAFCASS Officer has the following documents to send to the Court along with his/her report:
- Statement from IPs (detailing need for surrogacy and the journey)
- COTS Surrogacy Agreement
- Statement of expenses
- Letter from IVF clinic (if one used) stating that the child is the result of IVF and is the genetic child of at least one of the IPs
- Witnessed signed consent form (surrogate and partner consent)
- When PO is granted, the PO document should be sent by the Court to the IPs and the Central Register Office
- IPs to call Central Register Office (Parental Order Team – 0300 123 1837 #8) to let them know the PO is on the way and to request they produce
short and long birth certificate; payment will be required for the long version
Summary of Required Documents
C51 and C52 forms
Marriage Certificate (if married)
Cheque for Court Fees made payable to HM Courts and Tribunals Service
Statement from Intended Parents
Surrogacy Agreement + birth plan
Statement of Expenses + bank records
Letter from IVF clinic stating baby conceived through IVF treatment and is genetic child
Consent form signed (and witnessed by CAFCASS) from surrogate
Baby’s NHS red book
Info on need for surrogacy, e.g. any medical condition
Date written: Sept 2018, COTS
From a quick search I cannot see anything which would restrict the legal parents putting the intended parents’ surname on the UK birth certificate. The relevant bits of legislation are rather piecemeal butregulation 9(3)(b) of the Registration of Births and Deaths Regulations 1987/2088 states ‘the surname to be entered shall be the surname by which at the date of the registration of the birth it is intended that the child shall be known’. There is no restriction on what that surname has to be that I can easily find so it does seem the intended parents’ surname could be put on the birth certificate.
My only concern would be if parents get a birth registrar who doesn’t appreciate this and is insistent upon one of the legal parents’ surname being on the certificate rather than the intended parents. Registrars have been known to get things wrong!
Hope this helps.
for Mills & Reeve LLP
Absolutely - the IPs can choose the Christian name and surname too. It is just the birth mother and father bit which can't be changed. I always think this is odd because it means you could have Mr and Mrs Smith as the birth parents on the birth cert and then a child with a completely different surname! You used to be able to get a short form birth certificate which then only had the child's details on (name, date and place of birth from memory) and I always used to advise IP's to get a short form certificate as well as the long form one (with all the details) as this could give a bit of peace of mind as then to an onlooker, they have a doc with their child's name on which matches theirs until they get the parental order and new birth certificate. However, I heard rumblings that the general registry office might have stopped short form certificates all together, but not sure whether this is actually the case.
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Please be aware that COTS acts in an advisory capacity only. Our set guidelines have been hard learned lessons over three decades, so it is rare nowadays for a journey to go array. If you choose to ignore any one of our guidelines it will be at your own risk as COTS cannot be held responsible for an individuals actions.