Surrogacy makes headlines, but the legal realities behind those headlines are often misunderstood. From payments to legal parenthood, it can be difficult to separate common misconceptions from the facts. In this article, we unpack some of the most common misconceptions about surrogacy and explain what the legal position in England and Wales means for those involved.
Myth No 1 - The intended parents automatically become the baby’s legal parent at birth
A surrogacy arrangement is the practice whereby a woman carries a child for another person with the intention that the child should be handed over at birth to the intended patents and raised as theirs. It seems intuitive that the intended parents who have been intimately involved in the surrogacy journey for their child would simply be recognised as the child’s parents once the baby is born. However, in England and Wales, the reality is that the person who gives birth is the child’s legal mother. The position regarding the child’s second legal parent would depend on the circumstances and a surrogate’s marital or civil partnership status will be relevant.
Once the baby is born, an application for a Parental Order is necessary by the intended parents to transfer legal parentage. A Parental Order extinguishes the legal parenthood of the surrogate mother (and her spouse/civil partner if applicable) and gives permanent parental status to the intended parents but this process can only after the child is born, with the surrogate’s consent and is subject to certain conditions.
Myth No 2 – Surrogacy is illegal in the UK
Some members of the public may assume that surrogacy is prohibited here perhaps because they have heard about the restrictions on commercial surrogacy or see news of people traveling overseas for surrogacy arrangements.
Altruistic Surrogacy is legal in the UK, but the law restricts how arrangements can be organised and advertised, including prohibiting third parties from negotiating arrangements on a commercial basis. Intended parents cannot advertise for a surrogate, and individuals cannot advertise their services as a surrogate. A surrogate can be reimbursed for reasonable expenses, such as pregnancy-related travel, maternity clothing and loss of earnings. Payments are scrutinised by the court when the intended parents apply for a Parental Order, and any payments beyond reasonable expenses require the court’s authorisation.
Myth No 3 – Once you have signed a Surrogacy Agreement everyone is legally bound by it
A surrogate and the intended parents can record how they want the arrangement to work in a surrogacy agreement and it can be used to help everyone discuss and record their intentions, however, such an agreement will not be legally binding. This approach is intended to protect the surrogate, put the child’s welfare first and prevent surrogacy from becoming a commercial transaction.
This does not mean discussing expectations is not worthwhile, drawing up an agreement beforehand can be helpful for clarity. It is important to discuss what the intended parents and surrogate expect from one another, how much contact they envisage having before, during and after the pregnancy and what happens after the baby is born. It is also important to have discussions around what sort of relationship they envisage longer term and how much contact they will expect the surrogate to have with the baby as they grow up. Having something written down and having an enforceable contract are not necessarily the same thing but it is helpful for the parties to have these discussions and record their intentions as this is likely to be a lifelong relationship.
Myth No 4 – The surrogate must be genetically related to the baby
Carrying a baby does not necessarily mean having a genetic connection to them. A common assumption is that a surrogate always uses her own egg, but this is only one type of surrogacy. There are two main types, and the distinction depends on whose egg is used:
- Gestational surrogacy – also known as full surrogacy. An embryo created through IVF using an egg from the intended mother or a donor is transferred to the surrogate.
- Traditional surrogacy – also known as partial surrogacy. The surrogate’s own egg is used.
Genetic connection and legal parenthood are not the same thing. In England and Wales, the surrogate is the child’s legal mother at birth in either type of arrangement, even where the intended mother’s egg has been used. A genetic link also matters for eligibility: at least one intended parent must be genetically related to the child for a couple to apply for a Parental Order, while a sole applicant must have that connection themselves.
Conclusion
When it comes to surrogacy, assumptions about what is legal, who the parents are and what an agreement can achieve do not always reflect the reality. Separating myth from fact is an important first step. Specialist legal advice and practical support from the outset can help intended parents and surrogates understand their positions, discuss expectations and prepare for the journey ahead.
If you are considering surrogacy, planning an international arrangement or preparing to apply for a parental order, we can guide you through the legal process with clarity, care and sensitivity. Get in touch with our family law team for an initial, confidential discussion about your circumstances and the next steps available to you.
