Legal issues for surrogates

Surrogacy is a life-changing commitment which brings a child into the world, and it is important everyone is clear about their legal position.

That is why, at Brilliant Beginnings, our service includes legal advice both for our intended parents (from our sister organisation NGA Law) and for our surrogates (from an independent solicitor). 

As a Brilliant Surrogate, you will have a confidential legal review with a solicitor to discuss the legal implications of entering into a surrogacy arrangement and discuss any questions you may have.

This will include some of the following: 

Is surrogacy legal?

Yes. It is legal for you to be a surrogate in the UK.

The only aspects of surrogacy which are illegal are:

  • Advertising - You cannot advertise that you are willing to be a surrogate and looking for intended parents.
  • Commercial brokering - It is a criminal offence for a third party (i.e. not a surrogate or intended parents) to provide matching services for profit. Brilliant Beginnings is a non profit-making organisation, and operates fully within the law.

Can I sign a legally-binding surrogacy agreement?

Not in the UK; the law specifically says that surrogacy agreements are unenforceable.  We still recommend that you put things in writing and we will help you to do that.

It is also important that you invest in your relationship with your intended parents to create a foundation of trust and confidence. Remember that you will both be equally worried about the prospect of things breaking down. At Brilliant Beginnings we match you carefully and help you nurture your relationship and communicate clearly during the process, so that trust and respect is at the heart of your journey.

Who will be the legal parents of the child?

At birth, UK law treats you as the legal mother and you will be registered as the mother on the initial birth certificate of the child you give birth to. If you are married or in a civil partnership, your spouse/civil partner will (almost always) be the child's other parent and must be registered as the child’s father or second legal parent. If you are not married, then one of your intended parents (or the intended parent if you are working with a single parent) can be the other legal parent immediately from birth and can be named on the birth certificate with you. As the law initially recognises you as the birth parent, it means that you are entitled to maternity leave in the same way as if you were having your own child.

Our legal review will advise you as to the position in your particular circumstances and guide you on how the birth registration will work and what you need to do.

What happens next? How does the parental order process work?

Your intended parents will apply for a parental order after the birth which usually takes six to nine months to be granted. Once it is, the birth certificate will be re-issued and your legal status as a parent (and that of your spouse) will be fully and permanently extinguished. To protect you, we only work with intended parents who will be eligible for a parental order and we give your intended parents legal advice so they are clear about what they need to do.  We also arrange legal advice for you, so you know what to expect from the parental order process from a surrogate’s perspective.

Is it illegal to be paid more than expenses as a UK surrogate?

No. There are no criminal offences affecting what you can receive as a surrogate.  However, the family court will look at the payments that have been made as part of your intended parents’ parental order application and most surrogates want to help their intended parents keep things as simple as possible and so stick to a framework of ‘reasonable expenses’.  What counts as an expense is flexibly interpreted by the family court and the court can also accept payments which go outside expenses if necessary. A parental order has never been refused because too much was paid.  Find out more about how we deal with expenses at Brilliant Beginnings [link to expenses page].

What happens if any of us dies in the process?

We will protect you by making sure measures are in place to provide for the hopefully unlikely risk of any of you dying during the surrogacy process.  As well as taking out life insurance to protect your family, you will update your wills for you and your partner so that your children are protected if you die before a parental order is granted. The cost of both your new wills and your life insurance will be covered by your intended parents.                                                                                                      

In addition your intended parents put in place wills to make clear who will step into their shoes to care for the child if anything happens to them, and to provide for payment of your expenses.

For more information on being a surrogate click here to join our Facebook group for Support and information for surrogates. 

Contact us by email or phone to discuss becoming a surrogate.