Surrogacy Rights of Birth Mother
The female in a traditional surrogate pregnancy would be the legal mother of any children that she carries.
In this case, it would be the father’s sperm that fertilizes her egg so she would be the baby’s biological mother.
UK surrogacy law always treats the woman who gives birth as the mother. That means she would have the right to keep the child (even if not related ‘genetically’).
Despite this, after giving birth it is possible to transfer parenthood over to someone else. So, the intended parents could become the child’s legal parent using a parental order or adoption.
UK law does not enforce surrogacy contracts. So, there would be very little protection after signing a deal with a surrogate and paying for her expenses.
Note: In fact, it is illegal to pay a surrogate in the United Kingdom (excluding any ‘reasonable’ expenses).
Surrogacy Rights of Father
The legal father of the child (also called the second parent) will be the husband or the partner of the surrogate, unless:
- The legal rights get transferred to another person. As a rule, this would happen through a parental order or through the child adoption process.
- The husband or the civil partner of the surrogate did not give consent to their wife or their partner.
A child would have no legal father (or second parent) if the surrogate is unmarried, has no partner, or not in a civil partnership. This would not be the case if the partner actively consents to it.
Note: You can read further information on surrogacy legal rights in the ‘Surrogacy Arrangements Act 1985‘ via GOV.UK.
Becoming the Legal Parent of a Child
There is only one way to become the legal parent of the child in the United Kingdom. You would need to apply for a parental order.
How Parental Orders Work
To apply for a parental order you would need to be genetically related to the child (i.e. the donor of the egg or sperm). You must also be in a relationship where you and your partner are married to each other, civil partners, or living together as partners.
The child must be living with you and your partner and you must all be residing either the United Kingdom, the Isle of Man, or the Channel Islands.
Note: As a single person you would not meet the eligibility criteria to apply for a parental order.
Adopting a Child
There is another option if you or your partner are not related to the child. The same alternative is also available if you are single. You may consider the child adoption process as the only way for you to become the legal parent.
Legal Rights of a Donor
You can read about the legal rights for egg and sperm donors if you use donated sperm or eggs with a surrogate.
Note: United Kingdom surrogacy laws are complex matters and are usually dealt with by a lawyer. You can read further information on the Human Fertilisation and Embryology Authority website.
Applying for a Parental Order
The next step is to fill in form C51 titled ‘Application for a Parental Order (Section 54 Human Fertilisation and Embryology Act 2008)’. You must give this form to a family proceedings court within six (6) months of the child being born.
There is no legal requirement for you to use your local family proceedings court. But, you would need to give an explanation if you use a different one.
The family proceedings court will want to see the full birth certificate of the child. The court will also charge you a fee for their services.
Once this gets filed the court will set a date for a hearing. They will issue a ‘C52 acknowledgement form‘ to you. Give form C52 to the legal parent of the child (i.e. the surrogate).
The birth mother must agree to the parental order in writing. The same applies for any other parent of the child. They will use form A101A titled ‘Agreement to the making of a parental order in respect of my child.
Note: You should not delay applying for a parental order. The procedure to become a child’s legal parent is not possible once the child turns six (6) months old.
Surrogacy Overseas
It is not uncommon for a surrogate to give birth outside of the United Kingdom. If so, you and your partner must be living in the United Kingdom to apply for a parental order.
Be aware that different countries have different rules on surrogacy. As a rule, it is best to get advice from a legal expert or contact the HFEA for further information.
Note: During the process of surrogacy, a surrogate child born abroad would need a visa to enter the UK. You can read information for British nationals considering surrogacy arrangements in foreign countries.
Rights to Pay and Leave
Using a surrogate means both partners may qualify for Paternity Pay and Leave and Adoption Pay and Leave. If you cannot get paid leave, you might be able to take unpaid parental leave or annual leave instead.
Rights of Surrogates
All pregnant employees have the legal right to take 52 weeks of maternity pay and leave and then return to their job afterward. Decisions taken by a birth mother after the child is born does not impact her right to get maternity leave.
Related Press Release
The government is set to offer more choice to prospective parents about when they can start a family in the United Kingdom.
If the proposed changes become law, the current storage limits for eggs, embryos, and male sperm will increase to a ten (10) year renewable period (to a maximum of fifty five years).