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The Legal Process of Surrogacy in the UK: Step-by-Step Guide

The supposed drama of having a child via a surrogate has been explored in everything from The Archers to Eastenders, as well as in countless Hollywood films. 

While there is no doubt that it can be an emotional experience, (after all, when is having a baby not?) it really doesn’t have to be a dramatic process littered with twists, turns, and disappointments, and it certainly shouldn’t be if appropriate and robust legal advice is sought throughout. 

Happy pregnant woman sitting with friend on sofa

Surrogacy in the UK

To demystify the subject and to bring some reality to this frequently over-sensationalized process, JMW Solicitors has compiled a short step-by-step guide of what to really expect from this incredibly rewarding journey. 

Step One – Decide What Type of Surrogacy Arrangement You Wish to Use 

There are two types recognized in the UK — traditional and gestational.

Traditional surrogacy involves the surrogate using her own eggs to create the child, resulting in a biological connection to them. 

Gestational surrogacy involves the surrogate carrying the child on behalf of others and would therefore have no biological connection to the child. Gestational is generally the preferred route in the UK.

Step Two – Choose Your Clinic Carefully 

Surrogate children must be conceived artificially and unless it is a traditional surrogacy this will undoubtedly mean that a specialized clinic is required.

Take time to research which clinics meet your needs and are specialists in surrogacy. You should also go and meet the treating doctors/nurses as this will help you feel more comfortable and confident with your clinic of choice.

Step Three – Have Embryos Created

At least one of the intended parents must be biologically connected to the child to qualify for a parental order. This is very important.

Donor eggs/sperm can be used, as long as one of the intended parents’ gametes (eggs or sperm) are also used to create the embryo.

Step Four – Find a Surrogate

Be patient — don’t expect this to happen overnight.

There are only a limited number of specialist charitable organizations, such as Surrogacy UK and My Surrogacy Journey, that are able to assist you in finding and being matched with a surrogate. It is important not to rush this process as this will be a very important relationship. 

If it is a friend or family member, take time to discuss things thoroughly, considering all the outcomes and challenges that taking this step together could entail.

Step Five – Enter into a Surrogacy Agreement 

These are not legally binding in the UK and cannot be prepared by lawyers but do serve as a document recording everyone’s intentions regarding who will care for the baby, make important decisions and address payments, etc.

Clinics will usually wish to see these, and they are often referred to in subsequent legal proceedings.

Most reputable clinics now insist on both intended parents as well as surrogates taking advice. It is so important to understand the law and legal positions.

The law in the UK means that the starting point is that the surrogate (even if not biologically related) and her husband/wife are the child’s legal parents at birth.

It is important to understand and ensure that you meet all necessary criteria to apply for a parental order to change the child’s legal parents to those of the intended parents.

Step Seven – Undergo Treatment 

When you/your surrogate are emotionally ready (usually having undergone counseling with the clinic, and having had medical as well as legal advice) treatment can begin. At this point, all you need to do is keep your fingers crossed for a positive pregnancy test.

Step Eight – Enjoy the Pregnancy 

It might feel like a long nine months, but it is also a time to celebrate and enjoy being a part of a special journey with your surrogate. Go to scans, meet up regularly, see the growing bump, and look forward to parenthood while supporting your surrogate.

Step Nine – Apply for Parental Order 

Once your baby is born and is six weeks old, you can apply for a parental order .

A parental order rights the legal parenthood position and if such an order is granted (which, providing all the necessary steps have been taken, it should be) changes the legal parenthood of the child from the surrogate and their spouse to the intended parents. 

A new birth certificate will be granted recognising the true new legal parenthood and you will have arrived at the end of your surrogacy journey with the greatest adventure only just getting started.