Legal issues around surrogacy
Seek legal advice
Surrogacy involves complicated legal issues and we recommend that you seek your own legal advice before making any decisions.
It is also advisable to receive counselling before starting the surrogacy process, to help you think about all the questions involved.
The HFEA does not regulate surrogacy.
On this page:
- The rights of the surrogate
- What if the surrogate mother changes her mind?
- Becoming the child’s legal parents – parental orders
- Becoming the child’s legal parents – adoption
- Prior to a parental order/adoption, who can be the child’s second legal parent?
- What happens if the child is born outside the UK?
The rights of the surrogate
You should bear in mind that the surrogate has the legal right to keep the child, even if it is not genetically related to her.
Surrogacy arrangements are not legally enforceable, even if a contract has been signed and the expenses of the surrogate have been paid.
The surrogate will be the legal mother of the child unless or until parenthood is transferred to the intended mother through a parental order or adoption after the birth of the child. This is because, in law, the woman who gives birth is always treated as the mother.
What if the surrogate mother changes her mind?
The surrogate has the legal right to change her mind and keep the child, even when the baby she gave birth to is not genetically related to her. This is difficult for everyone concerned and that’s why it is vital that you trust each other and are clear about what is going to happen.
Familiarise yourself with the wording of the Surrogacy Arrangements Act, 1985, or discuss its implications with your lawyer before proceeding.
Clinics have to consider the possibility of a breakdown in the surrogacy arrangements and whether this is likely to cause serious harm to the child to be born or to existing children.
Becoming the child’s legal parents – parental orders
If the intended parents wish to become the legal parents of the child, they may either apply to adopt the child, or apply for a parental order.
The effect of the order is to transfer the rights and obligations of parentage to the intended parents, providing certain conditions are met.
Applications for a parental order must generally be made to the Court within six months of the birth of the child.
To obtain a parental order, at least one of the commissioning couple must be genetically related to the baby i.e. be the egg or sperm provider. Couples must be husband and wife, civil partners or two persons who are living as partners.
Becoming the child’s legal parents – adoption
If the commissioning couple cannot apply for a parental order because neither of them are genetically related to the baby (donor egg and donor sperm or donor embryos were used), then adoption of the baby is the only option available to them.
If adoption is to be the option used, then a registered adoption agency must be involved in the surrogacy process. This is why it is important to get legal advice before you decide to embark on surrogacy.
Prior to a parental order/adoption, who can be the child’s second legal parent?
Unless parenthood is transferred to the intended father or second parent through a parental order or adoption:
the child’s legal father or second parent will be the surrogate’s husband, civil partner (unless it can be demonstrated that her husband/civil partner did not consent to the treatment) or partner (if the partner consented to being the father/second parent)
if treatment was performed in a licensed clinic and the surrogate mother is not married/in a civil partnership, either:
the intended biological father will automatically be the child’s legal father on birth (providing no other person has been nominated as the legal parent)
the intended father who is not the biological father (eg, an intended father using donor sperm or the male partner of the biological father) can be nominated as the child’s second legal parent
the intended female parent can be nominated as the child’s second legal parent.
Please see the surrogacy and legal parenthood FAQs for further information.
What happens if the child is born outside the UK?
In a surrogacy arrangement, if the child is born abroad, the commissioning couple can apply for a parental order only if they are living (or domiciled) in the UK.
The parental order officially transfers parental responsibilities to the commissioning couple.
While waiting for the parental order to be processed, the child born abroad will require a visa in order to enter the UK.
If you are considering surrogacy abroad, seek legal advice before going ahead.
For more information on treatment abroad, see:
Page last updated: 22 October 2013