Surrogacy is often a delicate matter, some wish for a certain level of privacy when discussing their child’s birth whilst others openly advocate the process. Either way, it is important to know the legal rights surrounding surrogacy. The act of surrogacy is legal in the United Kingdom and has been since the Surrogacy Arrangements Act 1985.
Along with the increased popularity for using surrogates came the surge in the use of Surrogacy Agreements. Whilst Surrogacy Agreements are often used, they are not legally binding documents under the Human Fertilisation and Embryology Act 2008. Whilst they are unenforceable as contracts, the law has since reformed so that they are in effect equal to Parental Orders.
Parental Orders determine who has parental responsibility for a child however can only be used where the applicant (or their partner if applying jointly) is genetically related to the child. For example, in circumstances where the intended parents donated an egg or sperm which was implemented into the surrogate mother. For an application for a Parental Order to be successful, the child must be living with the intended parent in the United Kingdom, Channel Islands, or the Isle of Man. The application should be made within the first 6 months of the child’s life.
If the above does not apply, the intended parents should apply to adopt the child in order to gain legal rights. Adoption is rarely commenced without the agreement of the biological parents. In limited circumstances where the child would be put at risk if they were not adopted, or if the parents are unlocatable or otherwise unable to care for the child, the court may accept an adoption application. Anyone who has resided in the United Kingdom for one year can initiate the adoption process so long as they have a permanent and fixed home in the U.K, Channel Islands, or the Isle of Man.
The process of applying for adoption or for a parental order can be swift where all parties are cooperative however where there is an issue in dispute or one party is in disagreement then matters swiftly turn burdensome which is why we recommend seeking legal advice from the outset.