Domestic Gestational & Traditional Surrogacy
Before we discuss surrogacy in detail we would like to inform you of 3 points:
POINT 1 – We would like to give you an explanation of 2 terms we use throughout this write up.
- SURROGATE PARENT(S) – The surrogate parent(s) are the birth parent(s) of the child. The birth parents are the following individuals:
- The birth mother is the woman who is the surrogate. She carries and gives birth to the baby.
- The birth father is the husband or civil partner of the birth mother whether he is the genetic father of the child or not. However, if this individual has not consented to her being a surrogate then he will not be considered the birth father. For further detail please read page 10 of form C51.
- The second female parent is either married to the birth mother or is in a civil partnership with her. However, if this individual has not consented to her being a surrogate then she will not be considered the second female parent. For further detail please read page 10 of form C51.
- INTENDED PARENT(S) – The intended parent(s) is the individual or couple who intend to apply for a parental order once the child is born. The intended parents sometimes are the genetic parents of the child.
LINK TO OUR L.I.P HELP GUIDE FOR FORM C51 – Court application form for a parental order
POINT 2 – We would like to inform you of a government guide available to you
The government has produced an excellent guide called the surrogacy pathway: surrogacy and the legal process for intended parents and surrogates in England and Wales. Please click on the link below.
LINK TO GOVERNMENT WEBSITE FOR GUIDE CALLED THE SURROGACY PATHWAY
POINT 3 – One of the intended parents has to be the genetic parent of the child to apply for a parental order
Below in this write up we explain that once a surrogate baby is born the intended parents have to apply to the court for a parental order so they can take parental responsibility for the child. To do this one of the intended parents must be the genetic parent of the child.
The intended parents CANNOT apply for a parental order to legally transfer parental responsibility from the surrogate parent(s) to themselves unless one of them is the genetic parent of the child.
WHAT IS SURROGACY?
Surrogacy is the term used when a woman carries and gives birth to a child whom after the birth another couple or individual (the intended parents) will take parental responsibility for.
The two types of surrogacy are gestational and traditional. Of the two, today, gestational surrogacy is more common.
WHAT IS GESTATIONAL SURROGACY?
With gestational surrogacy the surrogate mother has no genetic connection with the child.
The sperm of a man fertilises the egg of a woman to form an embryo in a laboratory. This embryo is then implanted in the uterus of a surrogate woman so that the embryo can implant itself into the uterus wall and a pregnancy can start. This process is called in vitro fertilisation (IVF).
The sperm and egg can be from the couple arranging the surrogacy or either sperm or egg can be from a donor if the couple are same sex for example.
IF THE PREGNANCY IS VIA GESTATIONAL SURROGACY CAN THE SURROGATES DNA TRANSFER TO THE BABY DURING THE PREGNANCY?
No it cannot and does not.
WHAT IS TRADITIONAL SURROGACY?
With traditional surrogacy the surrogate mother has a genetic relationship with the baby.
Using a method called intrauterine insemination (IUI) a medical professional will release a man’s sperm into the uterus of the surrogate mother so it naturally fertilises her egg.
WHY IS SURROGACY IMPORTANT?
Surrogacy is a way for heterosexual couples who cannot conceive, single people, same sex couples and members of the LGBTQ+ community to have a genetically related child.
LINK TO NHS WEBSITE FOR HAVING A BABY IF YOU ARE LGBT+
WHAT DOES UK LAW SAY ABOUT SURROGACY?
The law makes the following points:
1. Commercial surrogacy in the UK is illegal. There cannot be any form of financial arrangements between the surrogate mother and the intended parent(s).
2. The surrogate mother should want to help the intended parent(s) to have a child without any financial gain.
3. The intended parent(s) can only pay for the reasonable expenses of the surrogate and nothing else.
4. If there is a pre-birth contract (also sometimes referred to as a surrogacy agreement) between the surrogate birth parent(s) and the intended parent(s), it is not legally binding. If the surrogate mother changes her mind or changes the rules then there is no legal recourse, however the court may take it into consideration when making a decision.
5. A couple or an individual cannot advertise for a surrogate.
6. A surrogate mother cannot advertise herself as a surrogate.
7. A third party cannot advertise that they facilitate surrogacy. Only non profit organisations can advertise that they facilitate surrogacy and only under certain circumstances.
8. A third party including a solicitor cannot negotiate a paid surrogacy agreement.
9. Once the baby is born the surrogate mother will be the baby’s legal parent. If the surrogate is married or in a civil partnership her spouse will be the other legal parent unless they have not given their permission to be part of the surrogacy. Both the surrogate and her spouse will be named on the baby’s birth certificate as the legal parents.
10. Once the baby is born the intended parent(s) have to send an application to the court to obtain a parental order within 6 months of the baby’s birth. This application will transfer parental responsibility and rights from the surrogate to the intended parent(s). The intended parent(s) can only submit the application for a parental order if one of them is genetically related to the child.
The court application form used to make an application for a parental order is form C51
LINK TO OUR L.I.P HELP GUIDE FOR FORM C51
The surrogate mother needs to give her agreement/consent for the court to process the form C51 application for a parental order. The form used for this is form A101A.
LINK TO OUR L.I.P HELP GUIDE FOR FORM A101A
If twins were born you will have to apply separately for each baby. There must be a separate agreement/consent form A101A for each baby as well as a separate form C51.
If the birth parents have agreed/consented to the parental order being made they must have signed this agreement/consent after the baby is 6 weeks old. If this agreement/consent is not available then you will need to ask the court to dispense with this agreement/consent so the parental order can be made.
Please note as stated above the intended parents can only apply for a parental order if one of them is the genetic parent of the child.
Under other circumstances the intended parent(s) can make an application for adoption if required.
LINK TO OUR L.I.P HELP GUIDE FOR DOMESTIC CHILD ADOPTION
LINK TO OUR L.I.P HELP GUIDE FOR INTERCOUNTRY CHILD ADOPTION
11. As of 2019, a single intended parent can make an application for a parental order as long as they are genetically related to the baby.
12. Once the intended parents have a parental order, they can make an application for a new birth certificate.
13. If at any point the surrogate mother/parents change their mind about the baby, they can inform the Cafcass parental order reporter and the court immediately. Please read further down this webpage where we will explain what a Cafcass parental order reporter is.
WHAT IS INTERNATIONAL SURROGACY?
In the UK, it is legal to use an international surrogate.
In some countries, commercial surrogacy is legal. You can pay an international surrogate to carry your child.
In some countries you may be able to have your name on the birth certificate however, in the UK it may not be recognised.
Once the child arrives in the UK you can make an application for a parental order.
LINK TO HOME OFFICE GUIDE ON INTER-COUNTRY SURROGACY AND IMMIGRATION RULES.
LINK TO OUR L.I.P HELP GUIDE FOR INTERNATIONAL GESTATIONAL SURROGACY
HOW TO FIND A SURROGATE?
- Through an non profit agency
- Through family and friends.
LINK TO OUR HELP GUIDE 16 – LET US CONNECT YOU TO ORGANISATIONS THAT COULD HELP YOU
WHAT IS THE ROLE OF CAFCASS IN THE SURROGACY PROCESS?
What is a Cafcass parental order reporter?
As soon as the court receives the intended parents court application form C51 for a parental order, the court will ask Cafcass to appoint a parental order reporter who is a Cafcass social worker experienced in dealing with surrogate cases. The Cafcass parental order reporter will explore and look into the whole surrogacy case and determine what is in the best interest of the child. They will write to the surrogate birth parent(s) and the intended parent(s) to inform them they have been appointed by the court. They will then make arrangements to visit and talk to the surrogate birth parent(s), the baby, and the intended parent(s). The Cafcass parental order reporter will write a parental order report for the court to consider before the court grants a final parental order. It is the role of the Cafcass parental order reporter to ascertain whether the surrogate mother and her spouse/partner if she has one freely consented to the surrogacy, freely consent to the parental order being made and they have a complete understanding of the consequences on the parental order.
How long does a parental order report take?
It can take a Cafcass reporter up to 12 weeks to complete and submit the report to the court for consideration.
What may the Cafcass parental order reporter want to see when they visit you?
1. Surrogate birth parent(s) – The Cafcass parental order reporter may want to see the baby’s birth certificate and the baby’s PCHR (red book). They may also want to see your bank statements to be certain that you have only been paid reasonable expenses for the surrogacy.
2. Intended parent(s) – The Cafcass parental order reporter may want to see a marriage or civil partnership certificate and bank statements showing that only expenses have been paid to the surrogate birth parent(s).
WHAT IS THE COURT PROCESS FOR THE INTENDED PARENTS OBTAINING A PARENTAL ORDER?
To summarise the court process is as follows:
1. Intended parents submit form C51 and all attachments to the family court within 6 months of the baby’s birth. The intended parents must also send additional copies of their C51 form to the court so the court can stamp them. The intended parents will be known as the applicants.
2. The court will process form C51 and send the intended parents an acknowledgement form C52 and the stamped copies of their application form.
3. The intended parents should make copies of this form C52 or download more copies from the link below.
4. The intended parent(s) must complete the C52 acknowledgement form and send it along with a copy of the C51 application form to the surrogate birth parent(s) and to anyone else involved in the case (known as the respondents). The intended parents must send a separate C52 form to each respondents. Once the intended parent(s) have done this they must complete form FL415 (statement of service form) and inform the court that they have served the respondents. The words ‘to serve the other party or respondent’ means they must receive the relevant court papers that require them to be informed, respond, comply with directions or attend court.
LINK TO OUR L.I.P HELP GUIDE FOR FORM C51
LINK TO OUR L.I.P HELP GUIDE FOR FORM C52
LINK TO OUR L.I.PO HELP GUIDE FOR FORM FL415
5. Once the respondents including the birth parent(s) have received form C52 and a copy of the completed form C51 they should complete pages 2 and 3 of form C52 and return it to the court, to the applicant and anybody else who is the respondent in this case.
6. Meanwhile the court will ask Cafcass to appoint a parental order reporter (a social worker with surrogacy experience) to contact the surrogate birth parent(s), the baby and the intended parent(s) and write a parental order report for the court to consider.
7. The court will fix a court date for a hearing and send a notice of this court date to the applicant and to all respondents including the surrogate birth parent(s). This hearing will be a directions hearing where:
- All the paperwork will be checked if it is in order.
- A Cafcass parental order report will be asked for by the court if not already.
- Statements will be asked for from the intended parent(s) if not already received.
- Form A101A agreement/consent will be asked for if not already received.
- A date will be set for the final hearing. If other issues arise there may be another directions hearing set.
8. At the final hearing decisions will be made and a parental order finalised.
9. Once the intended parents have a parental order they can make an application for a new birth certificate.