What is UK surrogacy? What are my rights as a surrogate, or as an intended parent? Is it legal in the UK? It is a legal practice that is unenforceable by UK law. It’s used to give birth to a child. As such, it’s important to know what your rights are when using surrogacy to give birth to a child. Furthermore, an intended parent may then become the legal parent(s) of a child born using this method. Your Benefits will tell you everything you need to know about surrogacy in the UK.

How does surrogacy work?

Surrogacy in the UK is a procedure where a couple, unable to carry or conceive a child, gets a woman to carry it for them. In this article, when we refer to the surrogate, we refer to the person carrying the child. Furthermore, when we talk of intended parents, we talk about the parents who want to become the child’s legal parents.

Surrogacy and egg donation can be used also for finding a surrogate. A surrogacy contract is not legally binding. A gestational carrier or gestational surrogates is similar. You can receive advice for gestational surrogacy from the american society for reproductive medicine.

Your surrogacy journey can be done by assisted reproduction. Through a surrogate egg, a surrogacy process and a surrogacy agency, it’s possible that in a process, a baby is born.

Is surrogacy legal in UK?

Surrogacy is legal in the UK. However, you may decide to make a surrogacy agreement. Then, you may not use the law to reinforce it. A surrogacy agreement determines how the surrogate and intended parent want to do the surrogacy. Furthermore, for surrogacy in the UK, you may pay for a surrogate’s expenses, but not the surrogacy itself.

Although surrogacy is legal in the UK, surrogacy agreements cannot be enforced through the UK’s legal system. Indeed, this is regardless of payments that have been made, or signatures present on the document. Think of the agreement as an unenforceable promise between consenting parties.

Your surrogate may give birth outside of the UK. If this is the case, you can get a parental order only if both you and your partner (if you are both applying) need to reside in the UK. Furthermore, the baby may not be an EU or UK national. In this case, in order to go in the UK, they are required to have a visa.

How to become a child’s legal parent for UK surrogacy

You and your partner may have given birth through surrogacy in the UK. If this is the case, you can become the child’s legal parent. However, for this to be the case, you need to do so with adoption or a parental order. However, it could be that adoption is your only recourse. Indeed, to get a parental order, you need to be related to the child.

First, let’s look at parental order. You may apply for a parental order either by yourself or with a partner. If you want to apply by yourself, it is to be the only legal parent. First, you must be related to the child. Indeed, you need to either be the sperm or egg donor. Furthermore, both the following need to be true:

• You live permanently in the Isle of Man, Channel Islands or the UK;
• The child lives in your household.

The child that you apply for must not be older than 6 months.

Second, you may want to apply for a parental order with a partner. Then, either you or your partner needs to be related to the child. This means that one of you need to be the sperm or egg donor. Furthermore, you need to be either in a civil partnership, married, or living together as if this was the case. The following also need to be true:

• You live permanently in the Channel Islands, Isle of Man or the UK;
• The child in question lives in your household.

How to apply for a parental order

The procedures for a parental order differ depending on where you are. In Wales or England, you need to complete a certain form. More specifically, you need to complete a C51 application form for a parental order. Then, you need to send it to a family court, or take it there yourself directly.

You will need to give the following to be able to apply for a parental order:

• The full birth certificate of the child;
• £232 (this constitutes the court fee).

Then, the court will determine when the hearing takes place. After that, you will be provided a ‘C52 acknowledgement form. This will need to be provided to the legal parent of the child (which, then, will be the surrogate).

Surrogacy Pay and Leave

If you use surrogacy, you and your partner may qualify for Pay and Leave. Indeed, this includes Paternity Leave and Pay, as well as Adoption Leave and Pay. However, you could be unable to get this benefit. Then, you would be able to receive Annual Leave or Parental Leave. 

How to adopt a surrogate child in the UK

You may have to adopt the child that your surrogate gave birth to. Indeed, this is the case if you are not related to the child (if neither you or your partner are the egg or sperm donor). The child you want to adopt needs to be younger than 18 years old, which is the case if the surrogate mother gave birth recently.

If you want to adopt the child, you may need an adoption court order. To do so, the child must first reside with you for a minimum of 10 weeks. Then, you may be eligible. After you obtain your adoption court order, the following becomes true:

• Your adoption is permanent;
• Copies of your adoption certificate can be bought (they will not be automatically be sent to you);
• Legally, your child has the same rights that they would have if they were your birth child.

Furthermore, with the adoption certificate, you take away the parental responsibility of the surrogate mother. Indeed, you will then be the sole individual(s) responsible for the child.

If you want to apply for an adoption order, you may do so at a Family Court. Indeed, you will need to acquire an application form for an adoption order – Form A58. Then, you will have to fill it out and send it to the court.

Will I receive an adoption certificate for UK surrogacy?

Then, your application for an adoption order may be successful. If this is the case, you will receive an adoption certificate. Indeed, this will be issued by the General Register Office (GRO). The adoption certificate acts as a replacement for the original birth certificate. On it will be the new name of the child.

What are the rights of the surrogate mother?

Remember that a surrogacy agreement is not enforceable by UK law. As such, make sure that the intended parents and the surrogate mother are on the same page about the surrogacy. Additionally, make sure that both parties agree about everything.

The birth parents retain the right to refuse the adoption. Indeed, in order to be able to adopt a child, the birth parents need to agree to it. Once the adoption is done with the court, the birth parent(s) do not retain their parental responsibility for the child.  

Note that, in the situation described above, evidence will have to be provided. Indeed, this may include evidence given by social services. As such, it’s unlikely that such a situation would arise in a UK surrogacy case. However, it’s important to know your rights.

Sperm and egg donor rights

You may be an egg or sperm donor. In fact, this could be the case if you are the intended parent for the child. Indeed, you may have donated sperm via a licensed clinic of the Human Fertilisation and Embryology Authority (HFEA). Then, you will not be able to:

• Be the legal parent of any child that is conceived with your sperm;
• Have any kind of legal obligation to a child conceived with your sperm;
• Be named on the birth certificate of any child that is conceived with your sperm;
• Have a say in how the child conceived with your sperm is raised;
• Have to financially support any child conceived with your sperm;

You may be an egg donor. If this is the case, you will always be the legal mother of any child that is conceived with your eggs. In fact, this also includes when you donate your eggs.