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Surrogacy - the legal position

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Surrogacy is where a child is carried through pregnancy by a woman, not necessarily the genetic mother, who has entered into an arrangement that sets out who is intended to be the legal parent of the child once it is born.

A surrogate mother is the woman who will carry the child. The commissioning parents make the arrangement with the surrogate that the intention is for the child to become their child after birth.

There are two types of surrogacy. These are:

  1. Partial surrogacy - this is where a surrogate mother is also the child’s genetic mother. The child woudl also be genetically related to the father, who may be one of the commissioning parents or a sperm donor.
  2. Gestational surrogacy - this is where the woman that is the surrogate, is not genetically related to the child that she is carrying.

Family Solicitor Andrew Stynes is experienced in dealing with sorogacy cases. He says “It is important to note that, in current law, a surrogate mother cannot simply surrender or give up her child and parental responsibility – there must be a court order. In the event that the surrogate mother is married, the husband of the surrogate mother is treated at this point as the child’s father.”

If an application is to be made by the commissioning parents for a parental order, the application must be made within six months of the date of the child’s birth and the surrogate must give her consent, which can be obtained no earlier than six weeks after the birth.

In UK law, commercial arrangements for surrogacy are prohibited – no money may be exchanged for carrying the child. For this reason, many surrogacy arrangements are made outside the UK. There are no international conventions or arrangements to govern surrogacy, so any orders made abroad are not recognised or enforceable in the UK.

Andrew concludes “A further issue that can arise with surrogacy agreements which are made abroad is the immigration status of the child. For these reasons, it is vitally important that any person involved in any potential surrogacy arrangement, obtains independent legal advice before progressing.”

We have offices in the Christchurch, New Milton and the New Forest. Our Family team also cover Bournemouth and Poole. For a free initial chat, please call 01202 499255 and Andrew or a member of the team will be happy to discuss any questions that you may have