Ask The Legal Expert: We Want to Start a Family Via Surrogacy. What Do We Need to Know?

"I’m in an established relationship as a same-sex couple and we are keen to start a family. My sister has offered to be a surrogate and we’re delighted, but what do we need to know?"

More people are turning to surrogacy every year to become parents, and surrogacy has been in the news recently thanks to the actress Priyanka Chopra and her husband Nick Jonas, having recently welcomed a baby into their lives.

There are two types of surrogacy. Traditional surrogacy sees the surrogate using her own egg fertilised with the intended father’s sperm, or, gestational surrogacy sees the surrogate carrying the intended parent’s genetic child, conceived through IVF.

Choosing the right surrogate is important and you must talk frankly about your expectations and responsibilities. The surrogate must be 18 or over, and must freely, with full understanding of what is involved, agree unconditionally to carry the surrogate child. The surrogate is considered to be the legal mother and, if your sister is in a heterosexual marriage, her spouse is considered the legal father. If your sister is in a same-sex marriage or civil partnership, her spouse would still be considered the other parent, unless it can be proven that she (the spouse) did not consent.

Once the baby is born you should seek a Parental Order application within six months of the birth to start the legal process of transferring parental rights to you and your partner. The application cannot be made until six weeks after the birth, and full consent of the surrogate mother is required, confirming that she gives up parental responsibility and custody.

Surrogacy is legal in the UK but it is illegal to advertise for a surrogate or to give or receive money as part of the process. This is an emotive and complicated life choice, so it is vital that you seek specialist legal advice.

The much-anticipated report on Surrogacy from The Law Commission was published on 29 March 2023. It has been 6 years in the making and the result of an in-depth consultation process. The report, also accompanied with a draft bill, proposes a number of changes to the law around surrogacy. Click here to read more.

For more information contact: jill.bulteel@jcpsolicitors.co.uk or: 02920 855261.

The question posed is based upon a hypothetical situation. The content does not constitute legal advice and is provided for general information only.