Surrogacy is where a woman caries a baby for someone who is unable to conceive or carry a child themselves. The couple or individuals who choose to become parents by way of surrogacy are known as the “intended parent” or “intended parents”. At least one of the intended parents must be a genetic parent of the child born to them via surrogacy. To be a genetic parent of the child, the child must be conceived with either the sperm and/or the eggs of the intended parent(s). B P Collins’ family team explores the process in more detail.
Surrogacy is an important avenue for couples, or single people, especially within the LGBTQ+ community, as it allows them to realise their dream of starting a family and becoming a parent. When part of the LGBTQ+ community, especially within a same sex male relationship, surrogacy can be a very sensitive and personal journey, but a vital one to take.
There are two options for same sex male couples, or single men who wish to have a child: –
1. Host Surrogacy
- A donor egg would be selected, and then this would be fertilised with the sperm of the intended parent/parents. The sperm used will need to be decided between you and partner, or it could be randomly selected by the clinic involved. The best embryo would then be selected and transferred into the surrogate, who will then carry the baby.
- The surrogate will not be biologically connected to the baby.
2. Straight surrogacy
- This is when the surrogate agrees for her eggs to be used. The surrogate will then undergo IVF to have her eggs fertilised with the sperm of the intended parent/parents. The sperm used will need to be decided between the parties.
- The surrogate will be biologically linked to the baby.
When the baby is born, the surrogate will be on the birth certificate as the mother. If she is married, her husband, wife or civil partner is automatically the other legal parent of the child at birth. If the surrogate is not married, the biological father will usually be the child’s legal father from birth (this would only apply if the intended parents knew which sperm had been used). However, if conception takes place at a UK fertility clinic it is possible to nominate the other intended parent to be the second legal parent instead of the biological father, although the paperwork has to be set up correctly before embryo transfer to do this. This would need to be dealt with directly with the fertility clinic.
If you would like legal advice on the surrogacy process, please get in touch with our family team by email or by phone on 01753 889995.
Following the baby’s birth, the intended parent(s) must make an application for a Parental Order, which is a court order which will transfer parenthood to them. The intended parent(s) must apply for a Parental Order between the date 6 weeks after the baby was born and before the date 6 months after the baby was born. The whole process can normally take around 3 to 12 months to be finalised.
The process will be heard in the family court and a court appointed Social Worker will also be involved. Their role is to safeguard the best interests of the child. It is rare that a parental order is not considered in the best interests of the child. It is also important that the surrogate unconditionally consents to a Parental Order being made.
When the court makes a Parental Order, the effect is that legal parenthood is transferred to the intended parent(s), and the baby’s birth certificate will be re-issued to show the intended parent(s) as the legal parents.
To ensure that a surrogacy proceeds as smoothly as possible, we would recommend that you seek legal advice at the earliest opportunity so you are assisted throughout the process. Please contact B P Collins’ family team at enquiries@bpcollins.co.uk or call 01753 889995.
