Guides & Advice

Surrogacy | Legal advice when having a child via a surrogate

Published: 5th March 2021
Area: Family

Surrogacy is often thought of as a choice only available to wealthy individuals. However, in stark contrast to other countries such as the USA, commercial surrogacy is illegal in the UK and must be managed privately by the couples and individuals concerned.

It’s a big decision

There are specialist groups out there which do provide support, advice and networking opportunities for prospective parents looking to navigate this route.

After matching with a surrogate, transparent and frank communication is the cornerstone of any arrangement. This ensures that all parties are n the same page. From discussing the type of birth to the kind of surrogacy, fostering strong relationships is crucial in the short and long term.

The legal process in surrogacy

Although surrogacy is often seen as an altruistic act, intended parents still need to consider the legal challenges which can arise when choosing this route to start a family.

It is important a surrogacy agreement is prepared to document all the aspects the intended parents and surrogate have agreed upon. As with everything on the path to surrogacy, the parents and surrogate must be in constant and precise alignment. If the help of a surrogacy organisation, such as Surrogacy UK, has been enlisted, they will usually be on hand to offer help and guidance.

Leading up to the birth it is essential that wider issues such as wills and life insurance should also be considered. Practically, it’s vital for intended parents and their surrogate to discuss birth plans and surrogacy policies with the hospital, doula, or midwife.

What happens after a surrogate gives birth?

Following the birth the intended parents can apply for a parental order. This is a bespoke order, specific to surrogacy, and has the effect of transferring the surrogate’s parental rights (and if they are married, their spouses’) to the new legal parents. The process is similar to many other legal processes in that the intended parents will need to make a formal application to court.

The intended parents must meet several specific criteria if they are to succeed in their application. This can range from one of the parents having a genetic connection with the baby, through to evidencing the surrogate’s consent to the application. The application must be made within six months of the birth of the baby.

Despite there occasionally being unforeseen hurdles, such as delays in applications, the courts guiding principle is to achieve what is best for the baby.

The court will also appoint a parental order reporter to examine if the parents meet the criteria and to report to the court with that analysis. Taking early legal advice will help this process go smoothly for all involved, ensuring any hurdles are navigated, and leaving the parents to enjoy life with their new child.

Watch our free webinar on the essential legal advice you need when having a child using a surrogate

We’re here to support and protect your family

Our fertility and surrogacy lawyers have extensive experience in handling the intricacies of fertility law, particularly in relation to getting parental orders.

We will work with you from start to finish to ensure your growing family is protected. For guidance and support on the challenges ahead contact Katherine Marshall in our family team.

Our family team is ranked as a Top Tier Firm in the Legal 500 2021 edition.

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

Our free legal helpline also offers bespoke guidance on a range of subjects, with a team of experts on hand for any queries relating to personal and family matters. Available from 10am-12pm Monday to Friday, call 0800 689 4064.

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