Surrogacy Law: What are the legal rights of parents and surrogates in the UK and overseas?

More people are choosing to become parents via surrogacy than ever before.

Eleanor Tanner, Associate Solicitor at K J Smith, explains why it's so important to seek legal advice when embarking on a surrogacy journey

With more people exploring the different options for becoming a parent, the law surrounding modern families is becoming an increasingly important topic.

Over the past 10 to 12 years in England and Wales, there has been a huge increase in people choosing to become a parent using a surrogate - in fact, the number of parental orders (which are the type of order typically used to transfer parental rights from the surrogate to the intended parents) increased by over 350% between 2011 and 2021 which is suggestive of a linked increase in surrogacy arrangements*

Celebrities, such as Kim Kardashian and Chrissy Teigen may well have made the surrogacy process look simple but in the UK, the law in this area is complex.

Many people may not realise that the legal mother of a baby born through surrogacy, from the perspective of the law in the UK, will always be the person who gave birth to the baby regardless of whether they have a genetic link to the baby.

It is essential, therefore, that proper legal procedures are followed to ensure parental rights are attributed to the intended parent as planned and that any residual rights of the surrogate (and possibly their partner, spouse or civil partner) are extinguished.

Surrogacy abroad

While surrogacy is legal in the UK, The Surrogacy Act 1985 stipulates that surrogacy agreements are not enforceable by the law, therefore many prospective parents look for surrogates abroad.

Although it may seem reasonable to expect a surrogacy agreement entered into legally under the laws of another country to be treated as a legally enforceable agreement in the UK, the UK does not recognise surrogacy arrangements entered into overseas.

In addition, where a baby is born abroad using a surrogate, thought needs to be given to registration of the baby's citizenship, as well as immigration issues around bringing the baby to the UK.

It is essential for any individual in the UK contemplating having a child using a surrogate to take expert legal advice from a family lawyer, before they start the process, to ensure that they are granted the necessary and appropriate legal rights and to extinguish the rights of the surrogate and potential other third parties once the baby is born.

If you are considering becoming a parent by using a surrogate, contact Eleanor Tanner for specialist advice  email basingstoke@kjsmith.co.uk.

*Surrogacy Trends for UK Nationals: University of Kent and My Surrogacy Journey, 2021