Understanding surrogacy regulation in the UK

By Angela Bunn
Gynii Me

An interview with surrogacy lawyer, Eleri Williams

Hill Dickinson

For many people unable to have their own baby - whether heterosexual couples, same-sex couples or singletons - a child born through surrogacy is an opportunity to start a family.

The regulation of surrogacy - when a woman bears a child on behalf of someone else - can be very confusing. Without an obvious source of help, it can be difficult for intended parents to know where to begin.

Gynii Me spoke with lawyer, Eleri Williams from Hill Dickinson, London to learn more about how surrogacy is regulated in the UK.

Some helpful definitions

  • Surrogate - The woman who is willing to help the intended parents create their family by carrying a pregnancy and giving birth to a child on their behalf. This may include circumstances where the intended parents’ gametes (egg cells or sperm) are used for the conception of the child, or a donor’s gametes, or a combination of both.
  • Intended parents - The couple or person who commissions the surrogacy arrangement because they are unable to conceive or carry a pregnancy themselves, and intend to raise the child the surrogate gives birth to. Intended parents can include heterosexual and same-sex couples and single people.
  • Parental order - In the UK, the intended parent(s) of a child born through surrogacy will need to apply to the court for a Parental Order, to become the child's legal parent(s).
  • Gestation types: straight / traditional & host / gestational - In traditional surrogacy, the surrogate is both the genetic mother and the woman who carried the child. Pregnancy can be achieved through natural or artificial insemination or use of IVF to create an embryo using the surrogate’s egg and the intended father’s semen. In host surrogacy,  IVF is used to create the embryo transferred to the surrogate,  using the egg of the intended mother or a donor’s egg.

The Surrogacy Arrangements Act

In countries where surrogacy is not legal, or where the regulation of surrogacy is highly restrictive, couples seeking a surrogacy solution may choose to travel to countries such as the UK, where surrogacy is legally available.

In the UK from 2011 to 2018, Parental Orders filed in relation to surrogacy have more than tripled (https://www.bbc.co.uk/news/health-47826356, April 2019), indicating the rising popularity of surrogate services.

In the UK, surrogacy has been regulated for over 30 years, since the Surrogacy Arrangements Act 1985 came into force. The 1985 Act makes advertising for a surrogate, or as a surrogate, illegal. The Act also makes it a criminal offence to profit from surrogacy. Surrogacy agencies and brokers must not operate for profit. In addition, the Act renders all surrogacy arrangements legally unenforceable.

Since the 1985 Act came into force, very little has changed to the legal landscape except the following key amendments:

  • The Human Fertilisation and Embryology Act 1990 enabled the transfer of legal parenthood from the surrogate (and her partner, should she have one) to intended parents, via a Parental Order (more on this below).
  • The Human Fertilisation and Embryology Act 2008 extended the eligibility for Parental Orders to unmarried couples (in an enduring relationship) and those in civil partnership (and since 2014, same-sex spouses) and allowed non-profit making organisations to provide limited services to support surrogates and help intended parents find each other and enter surrogacy arrangements.
  • The Human Fertilisation and Embryology (Parental Orders) Regulations 2010 formally determined that the welfare of the child in mind is the paramount consideration for a court when awarding a Parental Order.
  • The Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018 which allows sole applicants to apply for a parental order in respect of a surrogate-born child.

A defining feature of surrogacy in the UK is that it must be “altruistic” in nature. This means it must not have any commercial elements (i.e. there must not be any financial gain or profit involved for the surrogate or anyone else). If you decide to engage in a surrogacy arrangement in the UK, you will need to understand how “altruistic surrogacy” works in practice.

Useful links:

A key characteristic of altruistic surrogacy in the UK is that any contracts or agreements entered into between the surrogate (her partner, if she has one) and the intended parents are not legally enforceable. Each party must, therefore, rely on the goodwill of the other parties when entering the agreement.

The Parental Order

“I wanted to help someone” Claire Kelly, a surrogate in a recent interview with BBC Scotland. Helping other people to become parents by acting as a surrogate for them has become a "passion" of hers.

Under UK law, the surrogate is the legal mother of the child she gives birth to, albeit that she does so pursuant to an agreement with the intended parents (i.e. according to an agreement made with the intended parents).

The surrogate has legal responsibility for that child, up until the transfer of legal parenthood to the intended parents.  This is true even if the intended parents’ or donor’s gametes (egg cells or sperm) were used to create the embryo or to conceive the child.

If the surrogate has a spouse or civil partner at the time of insemination or embryo transfer, her spouse or civil partner will be the legal father or second parent to that child.  This is the case unless there is a judicial separation or a separation order in force, or it is shown that the spouse or civil partner did not consent to the placing of sperm or embryo(s) (as the case may be) in the surrogate.

For one or both of the intended parents to gain the legal parental responsibility of the baby, they need to apply to the court for a Parental Order.

When the surrogate and the intended parents are UK citizens, the Parental Order application can be heard at the local family court. However, where there is an international element to the surrogacy arrangement, the case must be heard at the High Court in a formal proceeding.

Once a Parental Order has been granted by the court, this will permanently extinguish the surrogate’s (and her partner’s) legal parenthood and parental responsibility over the child in question.

However, obtaining a Parental Order is not simply about filling in forms, there are a number of requirements which must be met before a Parental Order will be granted, as follows:

  • At least one intended parent must be domiciled in the UK or in the Channel Islands or the Isle of Man. Therefore, in circumstances where intended parents are domiciled abroad, even where the child in born in the UK, the intended parents will not be recognised as the legal parents of their child born through surrogacy, under UK law. The surrogate (and her partner, if she has one) will continue to be the legal parent(s) of that child. Whilst the intended parents’ inability to obtain a Parental Order from the UK courts is unlikely to affect their ability to become the legal parents of the child under their own country’s domestic law, this will depend on that country’s law;
  • The intended parents must have attained the age of 18 when making the application;
  • At least one intended parent must be biologically related to the child i.e. at least one of the intended parents’ gametes (i.e. egg cells or sperm) must have been used to create the embryo transferred to the surrogate (see “Some helpful definitions” for more info about different surrogacy arrangements);
  • The baby must be living with the intended parent(s) at time of application;
  • The surrogate (and her partner, if she has one) must consent to the granting of the Parental Order, with full understanding: this consent is provided by submission of the A101A form;
  • The court must be satisfied that the surrogate has only been paid ‘reasonable expenses’ (although no upper limit is specified in law), and the amount paid must be authorised by the court;
  • The application for a Parental Order must be made between 6 weeks and 6 months post-birth.

In the UK, same-sex couples and single parents, as well as heterosexual couple, may legally apply for a Parental Order. Until recently, it was the case that a single intended parent could not apply for a Parental Order, and only couples were eligible.

However, a long-awaited change to UK law came into force in January 2019, enabling single people to apply for a Parental Order. The change in law means that single people are no longer discriminated against and they can now apply for a Parental Order on the same basis that a couple can, as long as they are genetically related to the child.

Importantly, when considering an application for a Parental Order, the court’s paramount consideration is the welfare of the child.

Seek Advice

It is advisable that, if you are considering entering into a surrogacy arrangement in the UK, or abroad, that you explore what is involved and seek expert advice to ensure that the decision to have a child via a surrogate gives you the best chance of success.

At the time of writing this article, the Law Commission of England and Wales and the Scottish Law Commission are in the process of conducting a consultation on reforming the law governing surrogacy in the UK. The Law Commission expects to produce a final report with their recommendations for reform of the law, and a draft Bill, in early 2022.

It is therefore worth bearing in mind that the legal rules could change significantly over the next few years.

Want to know more?

Eleri Williams is an Associate at the Hill Dickinson law firm in the commercial healthcare team in London. She specialises in life sciences regulatory and dispute resolution work, as well as commercial health tech work. Eleri has a particular interest in IVF, surrogacy and embryo research, as well as cell and gene therapy.

To learn more about Eleri Williams’ work at Hill Dickinson, visit her company profile: <https://www.hilldickinson.com/people/eleri-williams>

To find out how Gynii Me can help you at each step of your fertility journey, visit us at: <www.gyniime.co.uk>, or contact us on: +44(0) 7484 704 171, or at: <hello@gyniime.co.uk.>

Content last reviewed: 21 June 2021