Parental status when using a surrogate

Using surrogacy to create a family is becoming an increasingly popular option for same sex couples and those requiring assistance to have a child. However, there are many legal pitfalls that intended parents and surrogates are not always aware of, which may create an unintended outcome.

Surrogacy is when a person carries and gives birth to a baby for a couple or individual. This is usually either by way of gestational or traditional surrogacy. Gestational surrogacy is when one person who did not provide the egg used in conception, carries a foetus through pregnancy and gives birth to a baby for another person or couple. Traditional surrogacy is when the surrogate uses their own egg and the sperm of an intended father with conception taking place via IVF or artificial insemination.

As things stand, the intended parents will not automatically be the legal parents on the birth of their child. Intended parents must apply for a parental order, which assigns legal parenthood to them. One of the conditions when applying for an order is that at least one of the intended parents is biologically linked to the child. The granting of a parental order could take several months after the child’s birth.

In the meantime, who are the legal parents? Only two legal parents can be identified and the surrogate mother giving birth to the child will always be one of the legal parents, regardless of whether her egg was used. This is often not realised.

In relation to the second legal parent, that really depends on how the conception takes place. If conception takes place at a UK fertility clinic and the surrogate is married or in a civil partnership before fertility treatment, it creates the unexpected outcome of her spouse or civil partner automatically being the other legal parent, unless they do not consent to the treatment.

If the surrogate is not married or in a civil partnership and no Human Fertilisation and Embryology Authority (HFEA) forms are signed at the fertility clinic to say otherwise, the intended father who provided the sperm will be the second legal parent, unless they nominate the intended parent who did not provide their genetic material. The relevant HFEA forms must be completed at the fertility clinic, along with complying with several other requirements.

If conception does not take place at a UK fertility clinic and the surrogate is not married or in a civil partnership, the intended father providing the sperm will be the legal father. Conception must take place by artificial insemination.

If you are considering surrogacy, getting specialist legal advice is essential. There are also many other resources available to intended parents and those looking at becoming a surrogate and contacting a surrogacy agency is highly recommended.