Surrogacy is an ancient practice – at least as old as the Book of Genesis. Surrogacy, as we know it today, has been facilitated by a series of scientific developments – but the law, at least in the UK, is still catching up.

The common-sense view of surrogacy goes something like this. A person is unable to conceive so they commission someone else to carry the baby. Surely (some would say) the commissioning parent has legal rights?

In fact, the law states that the surrogate is the legal mother until a "parental order" is made by the commissioning parents. The identity of the legal father or second parent depends on the surrogacy agreement, but will often be the surrogate's spouse or partner.

Perhaps surprisingly, surrogacy arrangements aren't legally enforceable. They're essentially verbal contracts between the surrogate and the commissioning parent(s). This has the potential to lead to tussles over parenthood.

Throw transnational arrangements into the mix – where the surrogate lives overseas – and you have an extremely complex legal field. 

This is one reason why it can be advisable to seek expert legal guidance before entering into a surrogate agreement – and after, when the baby has been born.

The facts

• Surrogacy is legal in the UK but surrogacy arrangements aren't legally binding.
• Commercial surrogacy is illegal in the UK but surrogate mothers can be paid "expenses".
• The surrogate mother is the legal parent until a parental order is made by the commissioning parent(s).

What are the different types of surrogacy?

There are two main types of surrogacy: "traditional" and "gestational".

Traditional surrogates use their own eggs to conceive the child. This could be via artificial insemination using a kit or at a clinic via IUI or IVF.

By contrast, gestational surrogacy is where embryos from the commissioning parent or parents are transferred via IVF into the surrogate. This means that the surrogate isn't genetically tied to the child.

The embryos can either be a combination of both commissioning parents' genetic material, or one parent's genetic material combined with a donor's eggs or donor's sperm – which obviously changes the genetic relationship between the child and their commissioning parents.

The difference, then, lies in the surrogate mother's biological relationship to the child she's carrying.

Legal ramifications

Whether the surrogate mother has a biological link to the baby or not, she's the legal parent until the commissioning parent(s) make an adoption order or parental order. In the meantime, she has legal parental responsibility.

If the surrogate mother is married, then her husband is the child's legal father by default – again, until a court order is made.

The non-biological commissioning mother has no legal parenthood or responsibility without a parental order. The same applies to a commissioning father who donates sperm – although this legal status mirrors that of any father who isn't married to the mother at the time of the child's birth.

However, the genetically related commissioning father is the legal father if the surrogate mother isn't married – but this doesn't give him legal parental responsibility.

How do parental orders work?

Parental orders exist to take legal parenthood and responsibility away from the surrogate mother and confer them on to the commissioning parents.

It's important to note two things. First, a surrogate has to give her consent to a parental order. Second, she's under no legal obligation to do so.

Surrogacy agreements aren't enforceable, so it's possible for a surrogate mother to keep the baby. The likelihood of this is obviously highly dependent on the specifics of the case. The nature of privately arranged surrogacies means that there's no guarantee things will work out smoothly.

A parental order can be applied for either singly or with a partner. In either case, one person must be genetically related to the child either as the egg or sperm donor.

Partners applying for a parental order must be either married, in a civil partnership or living as partners – and they must have the child living with them.

Whether applying as an individual or as a couple, the application must be made within six months of the child's birth.

In England and Wales, applicants must fill in a C51 form. There will be a court hearing at which they're issued with a C52. This must be filled in by the surrogate along with an A101A.

The process is different in Scotland and Northern Ireland – see here for details.

Overseas surrogacy

Different countries have different laws surrounding surrogacy. This means that even if you enter into an agreement in a country where you're automatically recognised as legal parents, UK laws overrule this arrangement.

In cases such as these, a parental order is essential.

How about pay and leave?

If you use a surrogate, you can apply for adoption pay and leave and paternity pay and leave. If you're not eligible, you could apply for parental leave or annual leave.

Surrogate mothers have the same rights to maternity leave as anyone else – regardless of what their relationship is with the child after it's born.

How can a family lawyer help?

Because of the complexities of surrogacy law in the UK, it's advisable to seek advice early on – this applies whether you're thinking of becoming a surrogate or of becoming a commissioning parent. And it applies whether you're looking at surrogacy at home or abroad.

Once the baby has been born, an experienced family lawyer can give you guidance about parental orders. This can range from help with the paperwork, to representation at hearings, to helping you write the statement you'll read out in court.

At Milners Law, our team of family lawyers is fast, flexible and friendly. Our mission is to get you a good result without sacrificing any thoroughness.

If you need guidance relating to surrogacy or any other area of family law, please don't hesitate to get in touch for a free, friendly consultation.