We Are Planning to Become Parents Via a Surrogate - What Do We Need to Know?
- AuthorAngela Killa
"My husband and I are a same-sex couple and my sister-in-law has offered to become a surrogate mum for us. We’re excited by the prospect, but how do we make sure we become the baby’s legal parents?"
Surrogacy is an increasingly common option for couples struggling to conceive, or for those who cannot conceive naturally as a same-sex couple. It 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.
Be aware that surrogacy is legal in the UK, but it is illegal to advertise for a surrogate or as a surrogate, or to give or receive money as part of the process. But a surrogate can volunteer to carry a child for another couple and to transfer parental responsibility, via a legal process, to the intended parents at birth.
As far as the legalities are concerned, 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. And if the surrogate mother is married, 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, 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.
As we have established, surrogacies can break down, so, it is wise to take professional legal advice before you proceed. In practice, Family Courts have proved sympathetic to intended parents who apply to have surrogacy agreements upheld. However, the first duty of the Court will always be to act in the child’s best interests.
The question posed is based upon a hypothetical situation. This content does not constitute legal advice and is provided for general information purposes only.