If you are considering pursuing a surrogacy arrangement, either in the UK or overseas, one of your first concerns is likely to be what legal status the surrogate will have in respect of your child.
The answer is simple – whether your surrogate is based in the UK or abroad and whether she is (or you are) married or not, she will be treated as the legal mother of your child under English law. This is because UK legislation treats any woman who carries a pregnancy as the parent of the baby she gives birth to, whether or not she is genetically related to the child.
This rule will still apply in respect of your child’s parentage even if he or she is born in another destination where the surrogate mother is not deemed as a parent under local law and where you are named on the birth certificate, since English law operates entirely independently and will apply its own rules.
In order to extinguish your surrogate’s parental status and reassign it fully and permanently to you under UK law, you will need to apply for either a parental order (the court order specifically designed to resolve the legal position following a surrogacy arrangement) or an adoption order (which may be possible if a parental order is not available). This cannot be done until after birth and the court process itself usually takes a few months to complete thereafter.
In the meantime, it is crucial that you have a strong mutual trust and understanding with your surrogate – that you will support her appropriately and that she will hand over your baby after birth and co-operate with your wish to transfer legal parentage.
This is especially important in UK arrangements since, unlike in some foreign destinations, surrogacy contracts are not legally enforceable here. If you decide to work with a surrogate who is previously unknown to you it is vital that you get to know her and build a relationship before conceiving, to ensure the chances of things going wrong are minimised.
For more information about surrogate or intended parents’ rights, the parental order or adoption, please contact our specialist solicitor, Nicola Scott.