Surrogacy – The legal issues


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Surrogacy has been in the news and in the soaps recently with celebrities using surrogacy to start a family and Tina in Coronation Street wanting to keep the baby she gave birth to as a surrogate for Izzy and Gary.


A surrogate is a woman who carries and gives birth to a child for a couple who want a child. Usually this happens when there is a medical condition that prevents a woman getting pregnant or giving birth, other fertility treatments have not previously worked and so a male same sex couple can start a family.


There are two different types of surrogacy; full or partial surrogacy. Full surrogacy involves the use of a donor egg and sperm, a donor egg and the intended father’s sperm or the egg and sperm from the intended parents, which is then implanted into the surrogate. Partial surrogacy uses the sperm from the intended father and the egg of the surrogate which is usually fertilised by artificial insemination.


There are legal issues which surround surrogacy the most important being that the surrogate has the legal right to keep the child even if it is not related to her. This is because in the eyes of the law the mother is the person who gives birth to the child and therefore she must transfer parental rights to the intended mother through adoption or a parental order. Surrogacy arrangements are also not enforceable by law even if expenses have been paid to the surrogate mother and the arrangement has been signed.


Unless the parental rights are transferred to the intended father or second parent through adoption or parental order the surrogate’s husband or civil partner will be the legal second parent of the child. If the surrogate whose surrogacy is performed in a clinic does not have a partner then the child will have no second parent until parental rights are transferred.


For the intended parents to become the legal parents of the child they must either adopt or apply for a parental order. A parental order will transfer the rights and obligations of the parents from the surrogate to the parents but at least one of the intended parents must be genetically linked to the child and the application must be made within six months of the birth. The intended parents must also be married, in a civil partnership or living as partners. If neither of the intended parents are genetically linked to the child then they must apply for adoption using a registered adoption agency who must be involved within the surrogacy process.


Due to the legal issues that surround surrogacy it is important to seek legal advice before making the decision to use a surrogate.


