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Child Care Solicitors

Thinking about Surrogacy? (25 January 2019)

Date: 25/01/2019
Duncan Lewis, Child Care Solicitors, Thinking about Surrogacy?

Following a recent surrogacy case which has prompted a change in surrogacy law, we discuss surrogacy and everything you need to know about The Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018 which came into force on 3 January. It is important to understand how the law can protect both surrogates and those looking to go down the surrogate route to have their children. We can help you answer the questions you may have before, during and after the baby is born.

There are a number of misconceptions when it comes to talking about surrogacy, so if you are unsure it is always worth speaking to a legal professional to ensure you have the best possible starting point. Here are just a few which we will cover in brief.

I want to have a baby by a surrogate, but I am not in a civil partnership or married – can I still make a surrogacy arrangement?

According to the Surrogacy Arrangement Act 1985, the definition of a “surrogacy arrangement” is:

(b) made with a view to any child carried in pursuance of it being handed over to, and [parental responsibility being met] (so far as practicable) by, another person or other persons.

Since the Human Fertilisation and Embryology Act 2018 came into force, a sole applicant can now apply for a parental order, which transfers legal parenthood after a surrogacy arrangement. Whilst up until this point it has been legal for a single person to apply for a surrogacy arrangement, those individuals were previously unable to apply for parental orders. Now both couples and single people can get a parental order to be the named legal parent of their child.

If you have already had your child through surrogacy as a single parent, you can now apply for a parental order retrospectively. You have until 2 July 2019 to do so; if you apply after this date it will be possible to get one, but more difficult.

Our team of specialist solicitors can ensure everything is done correctly, so that all parties are protected from start to finish.

I need a surrogate, but I want to be the genetic mother. Can this happen?

There are two types of surrogacy available in the UK. Traditional surrogacy means the baby has been conceived from the surrogate mother’s own egg. Genetic surrogacy is where an egg from a donor, or the intended mother, is implanted by artificial insemination. In this instance, the surrogate mother would carry a baby which is genetically the offspring of the donor, or intended mother.

The Human Fertilisation and Embryology Act provides the legal framework for all sperm and egg donation and In Vitro Fertilization (IVF). For advice on this, it is best to speak with a medical professional and seek expert legal support.

I want a surrogate but I am worried it will cost a lot of money.

Surrogacy in the UK is only permitted where it is arranged through a not-for-profit agreement. Commercial surrogacy, where the surrogate mother or organisation/ agency exist for financial gain, is not allowed and is punishable as a criminal offence.

Surrogate mothers will be allowed to claim expenses incurred, or any loss in income. A court will decide the agreed cost in each surrogacy arrangement. Our team of surrogacy solicitors act in your best interest to get the best possible arrangement for you.

I’m looking into international surrogacy – what do I need to know?

Every country has different rules and regulations for surrogacy. In the UK the surrogate mother is the legal mother of the baby under a parental order assigns it to the intended parent(s). It is crucial to understand the legislation involved in the home country of the surrogate mother and that of the UK before you begin.

We can ensure you have all processes in place before you enter into an international surrogacy agreement. Please read our page on international surrogacy and speak to one of our expert lawyers for more information.

I’m already pregnant and want to be a surrogate so the baby can go to a family that are struggling to have a baby of their own. What do I do?

If you are already pregnant and have not entered into a surrogacy arrangement order, then by law you cannot enter into one during your current pregnancy. Instead, you are able to put the baby forward for adoption.

We have a specialist childcare adoption team who can advise on adoption for both pregnant mothers and couples looking to adopt. We also have an established international adoption team that can help anyone wishing to adopt a child born overseas.

Duncan Lewis Family & Child Care Solicitors – Surrogacy

Our family and childcare department continues to be recognised by Legal 500 and Chambers for our expertise in dealing with varied and complex family, child care and children public law matters.

Adeeba Naseem is a director of family and childcare at Duncan Lewis, specialising in handling international and domestic family law proceedings at the High Court. Her niche expertise lies in child abduction, surrogacy and adoption cases.

She has expertise in surrogacy cases when the surrogate mother resides in England or another country to carry their child and look to secure parental orders to ensure that parenthood is legally transferred.

To speak with Adeeba, contact her on 0792 007 7039 or adeeban@duncanlewis.com.

Our family and child care team and all other departments can be reached on 033 3772 0409.


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