Our specialist family lawyers have recognised expertise in this area and will be able to guide and advise you on your domestic or international surrogacy arrangement.
It is our privilege to help you to become legal parents through the route of surrogacy or adoption and to ensure you are recognised as the legal parents of your child.
Surrogacy is a complex area of law, in particular where there are international elements to your surrogacy arrangement and it is important you have clear and expert advice so that you go into the arrangement with all relevant information. We have an understanding of the surrogacy process, both in the UK and abroad, gained over many years of legal practice in this area.
Surrogacy arrangements are not contractually enforceable in England, in contrast to the position in the USA (and elsewhere). Whilst disputes between intended parents and their surrogate are rare, they do happen and the court may need to intervene to make decisions based on the child’s welfare.
If you have a child using a surrogate, the law relating to legal parentage is complex but generally, you will not be the legal parents under English law. The surrogate (who gives birth to the child) is the legal mother of the child, unless and until her legal parentage is extinguished by the court. If your arrangement is international, this can be in stark contrast to the position in the country of birth where you may be recognised as the legal parents.
To make sure you are legally recognised as your child’s legal parent (and to give you parental responsibility for the child), you will need to make an application to court for a Parental Order. This order will recognise you as the legal parent and crucially will extinguish all the legal rights and responsibilities of the surrogate. We can advise you on the application process, what the court process will involve and the conditions for the court to be able to make a parental order. At the moment, only couples (including same sex couples) can apply for a parental order but the law is changing and we are waiting for new legislation to allow single parents to apply.
Briefly, the conditions for the court to make a parental order are:
- Both intended parents must be over the age of 18;
- At least one of the intended parents must be genetically related to the child
(having donated the egg or the sperm for conception);
- At least one of the intended parents must be domiciled in the UK;
- The conception must have taken place artificially (which can include home insemination) rather than naturally through intercourse; and
- The child must have his or her home with the intended parents at the time of the application
- The surrogate mother (and her husband) must fully, and with a full understanding, consent unconditionally to the making of the order at the time of the application
We pride ourselves on being efficient and cost effective and can either represent you at court hearings or give you solid advice in the background to your parental order application (for example, assistance with drafting your application and statements).
Practical Steps for those considering Surrogacy
These are some of our top practical tips if you are thinking about surrogacy:
- Undertake careful research into all options available to you; countries, legal process, immigration aspects, enforceability of agreements, costs, clinics, Doctors and agencies (surrogacy and egg donation). Try to speak to others who have had experience of the process. If you are embarking on an international arrangement, ask the agency what experience they have with foreign clients and ensure they have knowledge of the parental order process. Ask questions of the clinics/ doctors to check their success rates.
- Which type of surrogacy will work for you? Traditional surrogacy where the Intended Father’s sperm is artificially inseminated into the surrogate or gestational (host) surrogacy where IVF is used to inseminate the surrogate with the Intended Mother’s egg and donor sperm and therefore the surrogate has no genetic relationship with the child. For more information http://www.surrogacyuk.org/about_us/types-of-surrogacy
- Keep copies of all relevant documents and the research you have undertaken. Keep careful records of all payments made in relation to the surrogacy arrangement, including in respect of the medical treatment, as this will be relevant to your parental order application.
- Make an application for a parental order immediately after the birth of the child, even if you and your partner are not physically present here (one of you must be domiciled in England and Wales). We can help with the lodging of the application if you are not in the country.
- Try to ensure good continuing communication with the surrogate (and her spouse) after birth; the surrogate (and her spouse) will need to give their consent to the making of the parental order and that consent can’t be given before the birth.
- Ensure that a comprehensive record of all sums paid to the surrogate mother is kept. Payments made to a surrogate over and above her reasonable expenses will need to be authorised by the court.
The “incredibly bright” Claire Wood is increasingly involved in high-end matrimonial finance issues, including nuptial agreements. She has notable expertise in surrogacy issues and cases involving farming assets. Sources commend her skills as a “tough negotiator.”
Chambers UK 2018 on Claire Wood
Has a thriving international family practice and is particularly noted for the strength of her finance and surrogacy expertise. She is described as “extremely solid, reliable, hard-working and client-focused.
Chambers UK, 2017 on Claire Wood
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