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Increase in Surrogacy for Childless Couples

October 16, 2017

Whilst there are no accurate figures as to the number of children born through surrogacy, due largely to the ad hoc nature of the majority of the agreements, it is clear that surrogacy is on the rise, due in part to the legalisation of same sex marriage and also to increasing awareness of other options for childless couples.

Despite some common misconceptions that remain, it is perfectly legal for you to have a child through surrogacy, either in the UK or abroad. However, you cannot advertise that you are looking for a surrogate mother or want to be a surrogate or undertake commercial brokering; it is a criminal offence for a third party (i.e. not a surrogate or intended parents) to provide matching services for profit.

Once a child is born, the intended parents (in England and Wales) need to apply to the family court for a parental order within six months after the birth. This is because the surrogate mother (and her spouse if she is married) is the legal parent even if she has no biological link to the child and will remain so until or unless a parental order is made.

In order to be successful, the first consideration for the court is whether the order is in the child’s best interests. In addition, there are a number of evidential steps that need to taken to enable the court to make the parental order such as: being able to show that the child was born through surrogacy, conception took place artificially, evidence that the couple are in a marriage/civil partnership or stable cohabiting relationship, and are both over 18. The applicants must also prove that at least one of the applicants is the child’s biological parent.

The surrogate mother and her spouse or civil partner (if she has one) must fully and freely consent to the order and evidence must be given. The surrogate cannot validly give her consent until the child is six weeks old. Finally, the couple must satisfy the court that no more has been paid to the surrogate and any agency involved than 'reasonable expenses'.

By Joanna Farrands (Partner, Family Department)

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