We Want to Start a Family Via Surrogacy. What Do We Need to Know?

Surrogacy has hit the headlines this week with Australian actress Rebel Wilson announcing that she has become a mother for the first time via surrogate.

The comedic actress announced the birth of her child and shared an image of her daughter Royce Lilly, while thanking her “gorgeous” surrogate for carrying her “miracle” baby.

Recent figures reveal that the number of parents welcoming a baby via surrogate in England and Wales in the last decade has almost quadrupled, with more mixed-sex couples, often in their 30s and 40s, now choosing surrogacy.

The report from the University of Kent and non-profit organisation My Surrogacy Journey, also shows that Parental Orders, which transfer legal parentage from the surrogate, increased to 413 in 2020 up from 117 in 2011.

But what is the legal process if you are considering surrogacy?

Here Director and Head of Family at JCP Solicitors, Jill Bulteel, outlines what you need to know if you want to welcome a baby via surrogate.

Surrogate facts  

Your surrogate must be 18 or over and must freely, with full understanding of what is involved, agree unconditionally to carry the surrogate child. 

From a legal perspective, the surrogate is considered to be the legal mother until she gives up parental responsibility. If she is single, and the intended parents are in a heterosexual marriage or civil partnership, the husband within the intended parent relationship is considered the legal father.

However, the intended parents will need to apply for a Parental Order after the birth in order to claim their full parental rights.

Parental Order

You should seek a Parental Order application not before six weeks but within six months of the birth to start the legal process of transferring parental rights to you and your partner. The surrogate mother would have to confirm that she gives up parental responsibility and custody. In order for you to apply for a Parental Order at least one of the intended parents must be biologically related to the child.

Adoption order

Where there is only one parent, or both intended parents are not biologically related to the child, an Adoption Order may be needed. To be eligible for an Adoption Order the child must have lived with the parent for up to 10 weeks and an adoption agency must have been involved during the process.

The Adoption Order enables intended parents to have full legal parental rights for the child.

Important to know

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. As intended parents you are able to cover reasonable expenses for the surrogate, which include: maternity clothes, travel and treatment costs.

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.

This is a complex life choice, so is it is vital that you seek specialist legal advice. Contact: jill.bulteel@jcpsolicitors.co.uk or call 02920 860628.