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Ask The Legal Expert - Calls to Simplify Surrogacy Process For Families

View profile for Jill Bulteel
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My wife and I have struggled to conceive and my sister-in-law is becoming a surrogate mum for us. How do we make sure we become the baby’s legal parents?

Surrogacy can bring great joy to those involved. However, it can be emotionally taxing and legally complicated – not least if a family member is your surrogate. You may have heard media reports this month about calls from the Law Commission to update a number of the legalities surrounding surrogacy, as currently many legal professionals feel they are unnecessarily cumbersome. One of the simplifications being called for is to allow intended parents to assume the status of legal parents as soon as a baby is born. This would be subject to the surrogate mother retaining a right to object for a limited period after the birth.

As the law stands at the moment, the surrogate mother, whether or not she’s biologically related to the baby, is treated as the child’s legal mother until the Family Proceedings Court makes a Court Order to transfer parental responsibility. If the surrogate mother is married or in a civil partnership, her husband or civil partner will be treated as the child’s legal father until the Court Order is in place. Clearly, there are potential issues here for prospective parents to be cautious of. You may be close to your sister-in-law, but if she changes her mind your surrogacy agreement is neither legally binding nor enforceable via the UK Court. 

As the intended parents to your new baby, you should apply for a Parental Order within six months of the birth. The surrogate mother and her husband must give free, unconditional agreement to the order being made and you, as applicants must be:

  •  at least 18 years old and
  •  married, in a civil partnership, or co-habiting
  •  at least one of the commissioning parents must be the baby’s biological parent
  •  at least one of the intended parents must live in the UK

If any of the above cannot be met you can pursue an application to the Court for an Adoption Order.

Surrogacies can break down, so, it is wise to take professional legal advice before you proceed. However, Family Courts have proved sympathetic to intended parents who apply to have surrogacy agreements upheld. The first duty of the Court will always be to act in the child’s best interests.  

For more information, please contact Jill on: jill.bulteel@jcpsolicitors.co.uk, or call: 01443 490880.

For further advice, please contact our specialist Family Solicitors in:

The question posed is based upon a hypothetical situation.

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