National Surrogacy Week aims to raise awareness of surrogacy in the UK. In order to make surrogacy more accessible and familiar, this briefing will debunk the most common myths surrounding surrogacy by answering some of the questions our family law specialists are most frequently asked.
Q: My surrogate and I have drafted a surrogacy contract. We are both happy with it but would like a solicitor to review it to make sure it is legal. We are happy to pay for your services. Can you do this?
No, as it is a criminal offence for solicitors (and third parties) to receive payment for drafting or negotiating surrogacy contracts. Despite these restrictions, it is always advisable that intended parents and surrogates enter into their own agreement that reflects their intentions and commitments to the arrangement. Although not legally binding or a legal requirement in the UK, a surrogacy agreement can help ensure everyone is aligned and encourage honest conversations on trickier issues such as termination and financial arrangements. It is for these reasons that many non-profit surrogacy agencies and clinics require intended parents and surrogates to enter into an agreement before they are able to move forward – preparation is key!
Q: I am an unmarried surrogate and have been told by my intended parents that I can sign a consent form, for the purpose of the parental order, as soon as the baby has been born. Is that correct?
To be valid and accepted by the court, a consent form should not be signed by a surrogate (and, if relevant, her spouse) until the child is six weeks old. It is imperative that this consent is given fully, freely and unconditionally and with a clear understanding of what is involved. In practice, this part of the process is managed by a Parental Order reporter of CAFCASS (Children and Family Court Advisory and Support Service), who will be assigned to the case once a parental order application has been processed by the court. Part way through the court process (and not before six weeks after the child has been born) the reporter will contact the surrogate (and, if relevant, their spouse) directly to talk to them about the arrangement and the consent forms before witnessing them sign these.
Q: My husband and I are expecting a baby girl through surrogacy in June. We are both biologically related and our surrogate is married. We were told that my husband could be listed as the father on her initial birth certificate. Is this true?
Under UK surrogacy law, the surrogate is the legal mother. If she is married or in a civil partnership at the point of conception, her spouse is automatically treated as the child’s father/second legal parent unless they did not consent to conception taking place. A child’s initial birth certificate must reflect the legal position at birth so, in this case, your husband (the intended father) cannot be named on the initial birth certificate. You can resolve this through the parental order process and once the order is made by the court, a birth certificate is issued naming the intended parents as the legal parents. This certificate then supersedes the original.
Q: My partner and I have had a little boy through surrogacy. We are not married and I am not biologically related to my son. Can we apply for the parental order?
Before the court can make a parental order, they need to be satisfied that the intended parents meet a number of criteria. If they are applying as a couple and are not married or in a civil partnership they must ‘evidence’ to the court (typically by way of a statement or chronology document) that they are ‘living together as partners in an enduring family relationship’. Similarly, only one of the intended parents must be biologically related to the child to be eligible to apply for the parental order. So, in this case, a joint application for a parental order should be made (assuming all of the other criteria are met) irrespective of the fact that they are not married or civilly partnered and only one of the applicants is biologically related to the child.
Q: I spoke to some other intended parents who told me that I cannot apply for the parental order until 6 weeks after the birth date of my son. It seems an awfully long time to wait. Is this right?
No. A parental order application must be made within six months of a child’s birth (often confused with six weeks which relates to the timing of the surrogates consent – see above) and it is recommended that applications are made as soon as practically possible after the birth since they can take some time to complete.
I have seen first-hand how successful surrogacy arrangements in the UK can be. They are life-changing events and provide hope, joy and positivity to both intended parents and surrogates. Getting good advice and support from experienced professionals is key.