SURROGACY LAW SOLICITORS
Our specialist surrogacy 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.
Parental order in surrogacy
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 required for the court to be able to make a parental order.
In short, the conditions for the court to make a parental order are:
- The intended parent(s) 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
- The child must have his or her home with the intended parent(s) 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).
What is the procedure of surrogacy?
These are some of our top practical tips if you are thinking about surrogacy:
- Undertake careful research into all options available to you: different countries, the 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. Question the clinics/ doctors to check their success rates.
- Which type of surrogacy will work for you? You can choose from 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 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.
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Prohibited steps order
If one parent becomes aware that the other parent intends to take steps which they do not agree with in relation to the child, they can apply to the court for a prohibited steps order.
Examples of when this may arise include changes in the child’s schooling, the child being known by any other name or when one parent believes the child is at risk of harm and they apply to the court for an order preventing the other parent from removing the child from their care. Prohibited Steps Orders can also be effective when one parent suspects the other parent intends to take the children out of the jurisdiction of England and Wales without their consent.
Why do people choose surrogacy?
There are a number of reasons why aspiring parents may choose to use a surrogate mother, but the most common one by far is infertility. Couples who have often spent many years trying to conceive without success may turn to this method which, unlike adoption, allows them to become parents to a newborn child by having a third person carry the child for them.
Can a surrogate mother keep the baby?
A surrogate mother is the legal mother of the baby under English law, unless and until the courts intervene. This is in contrast to many other countries and does give her the legal right to keep a baby. However, a couple using a surrogate applies to court for a Parental Order; this order makes them the legal parent and enables the child’s birth certificate to be reissued.
What are the different types of surrogacy?
There are two types of surrogacy. In traditional (also known as straight/partial) surrogacy, the surrogate mother uses the intended father’s semen to inseminate her own egg. In host (also known as full / gestational) surrogacy, IVF is used in the surrogate mother with the egg of the intended mother or a donor egg, giving the surrogate mother no biological link to the child.
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