Legal Update: In a Nutshell - The law on surrogacy and its implications

Generally, surrogacy arrangements are entered into where a person or couple cannot conceive a child themselves (they are generally known as "intended parents").

There are two forms of surrogacy: one where the mother's egg is used, making her the genetic mother; and another ("gestational surrogacy") where the egg is provided by the intended mother or a donor, and the egg is fertilised through IVF and then placed inside the surrogate mother.

Is surrogacy lawful in England?

In England and Wales, surrogacy per se is not a criminal offence. However, "commercial surrogacy" is illegal. Commercial surrogacy involves entering into, offering or agreeing to make a surrogacy arrangement for commercial gain. This means that it is illegal for someone to offer or advertise that they are looking for a surrogate, or that they are willing to act as a surrogate.

It is also illegal for an agency to commercially gain from arranging a surrogacy. However, it is not unlawful to pay for expenses incurred by the surrogate.

Are surrogacy agreements legally enforceable?

Surrogacy agreements are not enforceable, even if a contract has been signed and the intended parents have paid for any expenses incurred. The surrogate mother will be entitled to keep the child, even if the child is not genetically related to her (if, for example, the child has been conceived through "gestational surrogacy"). This is because in UK law, the woman who gives birth to a child will always be treated as the child's mother.

The surrogate will be treated legally as the child's mother unless legal parenthood is transferred to the intended mother or father through a parental order or adoption after the child is born.

How can intended parents become legal parents of a child born to a surrogate?

If the intended parents wish to become the legal parents of the child, they may either apply to adopt the child or apply for a parental order. The effect of a parental order is to transfer legal parenthood to the intended parents, providing certain conditions are met.

To obtain a parental order, at least one of the commissioning couple must be genetically related to the baby (for example, be the egg or sperm provider). Couples must be husband and wife, civil partners or two people who are living as partners.

The application must be made within six months of the date of the birth, and this time limit cannot be extended. The child must also live with the applicants at the time of the application and at the time when the order is made.

If the commissioning couple cannot apply for a parental order (for instance, because neither of them are genetically related to the baby), then adoption of the baby is the only option available to them.

If adoption is to be the option used, a registered adoption agency must be involved in the surrogacy process.

Legal Update is produced in association with experts at Coram Children’s Legal Centre ?www.childrenslegalcentre.com

?For free legal advice on issues relating to migrant children call 0207 636 8505

Sign up to the monthly childRIGHT bulletin from CYP Now and Coram Children’s Legal Centre, for the latest news and information about children, young people and the law: www.cypnow.co.uk/email-bulletins