Surrogacy

In England and Wales surrogacy as such is not illegal. Neither the intended parents nor the surrogate commits an offence. However, it is illegal to arrange surrogacy commercially. What does this mean in detail? What is legal in the UK and what is not legal? What is the situation if a child is born to British parents by surrogacy abroad, in the US, Canada, Ukraine, Colombia or elsewhere? You will find the answer on this and the following pages.

The prohibition against commercial surrogacy in the UK means membership organisations and not-for profit organisations for surrogacy are not illegal, even if they levy a charge. However, a commercial for-profit agency might commit an offence under the Surrogacy Arrangements Act 1985. It is also illegal to advertise for surrogacy.

Surrogacy agreements are not enforceable. This means that if, for example, the intended parents refuse to make an agreed payment to the surrogate or if the surrogate refuses to hand over the baby, the court will not enforce the contract. In the latter case, if the court is asked to decide where the baby should live, it would do so under the welfare principle and depending on the paternity, the intended parents may need permission from the court to make an application.

The intended parents are not automatically the legal parents of the child, and without the appropriate court order, may in fact never be, depending on the situation. Legal paternity after surrogacy follows general fertility law. In most cases the intended parents would need to apply to the court for a parental order.

Below you find free information about the terminology we use in this section of the website.

You find further free information on other pages about:

Breastfeeding After Surrogacy

See the recent blog post for how intended mothers can breastfeed their children after surrogacy.

Terminology

Surrogate: The surrogate is sometimes also referred to as the carrier or gestational carrier. She is the woman who carries the child and gives birth to the child. In some countries (e.g. California, India, Ukraine) she does not seem to be the mother of the child legally. Under English law she is always legally the mother of the child without a court order changing this.

Intended parents: The intended parents, sometimes also called the commissioning parents, are the mother and father of the child (or the two mothers or two fathers, or a single parent) who intend to be the parents of the child after the surrogacy. Sometimes the genetic material of one of both of them have been used. Under English law the genetic father may be the legal father of the child, depending on the circumstances.

Surrogacy Agreement: The surrogacy agreement is the agreement which sets out that the surrogate will carry the child and then hand it over to the intended parents. It often also includes provision for payment of expenses to the surrogate and so on. In English law this is not enforceable.

Straight surrogacy (also traditional or partial surrogacy): Before fertility medicine became more sophisticated, the only practical way to arrange a surrogacy was to inseminate the surrogate, often with the sperm of the husband of the married couple who were the intended parents. This way the surrogate is the genetic mother of the child, as well as the woman who carries the child. Often private arrangements in the UK are still done this way.

Gestational surrogacy (also host or full surrogacy) This is now possible, and in many countries the most common way to arrange a surrogacy. With this method the intended mother’s eggs or eggs from an egg donor are fertilised in vitro with the sperm of the intended father (or one of the intended fathers in a gay couple or from a sperm donor) and the embryo (grown for a few days in vitro) is then implanted into the surrogate. This is the only way commercial surrogacy is done in many countries, such as the US.  There are various advantages to this including:

  • The ability to use a surrogate who may be a bit older and already has all the children she wants herself. The egg donor can be a younger woman with “fresher” genetic material, leading to higher chances of a successful pregnancy and lowering the risk of conditions such as Down syndrome. This means the surrogate has a good track record of uncomplicated pregnancies and is less likely to change her mind and want to have a baby herself, although this is extremely rare in commercial surrogacy anyway.
  • The surrogate is less likely to attach to the child emotionally as she has no genetic link to the child.
  • If the intended mother is able to provide eggs, the child may be genetically her own.
  • If the intended parents want a child to have a genetic background similar to their own, they are nevertheless free to choose a surrogate on issues such as reliability irrespective of her own background or ethnicity.
  • The embryos can be grown (about five days) to blastocyst stage and then frozen and implanted whenever the surrogate is ready and at the right time of her cycle. This makes logistics a lot easier.
  • The embryos can be genetically tested if the intended parents choose to have this done and screened for a number of genetic issues, which could lower the chance of a successful pregnancy.

Most agencies will only arrange gestational surrogacies for these reasons.

International surrogacy: If the surrogate and the intended parents live in different countries (or are domiciled or nationals of different countries), complicated questions of international law arise. They are particularly complex because there are no international treaties between countries about surrogacy, as there are, for instance, about divorce, child abduction or adoption. Please see the page on international surrogacy for further details.

If you are thinking of having a child through surrogacy, Richard Westoby’s book “Our Journey: One Couple’s Guide to US Surrogacy” will give you extremely helpful food for thought.


For advice on your specific circumstances contact Andrea Woelke who works as a consultant solicitor at Josiah-Lake Gardiner Solicitors: ring Andrea on 020 3633 0338 (+44 20 3633 0338 from abroad) or him (stating your full name, the full name of the other person in your case and your telephone number on which we can call you).

Please note that Josiah-Lake Gardiner Solicitors do not have a contract to take on cases on legal aid. To check if you may be able to get legal aid please go to this government website and contact a solicitor who has a legal aid contract.

20 February 2024 by Andrea Woelke