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Surrogacy & IVF

We are seeing an increasing numbers of families embark on alternative ways of having children. In addition to surrogacy, families are seeking to use donor gametes (either sperm or eggs) and frozen embryos or seeking co-parents.

Surrogacy is a complex area of law, in particular where there are international elements to your surrogacy arrangement, and it is important you have clear and expert advice so that you go into the arrangement with all relevant information. We have an understanding of the surrogacy process, both in the U.K and abroad.

What are surrogacy arrangements

Surrogacy arrangements are not contractually enforceable in England, in contrast to the position in the USA. Whilst disputes between intended parents and their surrogate are rare, they do happen and the court may need to intervene to make decisions based on the child’s welfare.

If you have a child using a surrogate, the law relating to legal parentage can be complicated to understand, but generally, you will not be the legal parents under English law. The surrogate (who gives birth to the child) is the legal mother of the child, unless and until her legal parentage is extinguished by the court. If your arrangement is international, this can be in stark contrast to the position in the country of birth where you may be recognised as the legal parents.

Parental orders & surrogacy

To make sure you are legally recognised as your child’s legal parent (and to give you parental responsibility for the child), you will need to make an application to court for a Parental Order. This order will recognise you as the legal parent and critically will extinguish all the legal rights and responsibilities of the surrogate.

The criteria for a parental order is:

  • The intended parent(s) must be over the age of 18
  • At least one of the intended parents must be genetically related to the child (having donated the egg or the sperm for conception)
  • At least one of the intended parents must be domiciled in the UK
  • The conception must have taken place artificially (which can include home insemination) – rather than naturally through intercourse
  • The child must have his or her home with the intended parent(s) at the time of the application
  • The surrogate mother (and her husband) must fully, and with a full understanding, consent unconditionally to the making of the order at the time of the application.

Other fertility law issues

We can advise intended birth parents, co-parents or donors on how the law applies in various IVF arrangements and on what legal rights they will acquire on the birth of a baby or by subsequent agreement or court application. It is important to understand your position with respect to parental responsibility. We can advise and represent any party involved in a dispute over a child’s parentage. We can also advise and represent you in relation to a family breakdown where such arrangements are involved.

How we can help you

At Fletcher Day, our team of surrogacy solicitors in London have a combined knowledge of over 80 years of post-qualification experience covering a wide and extremely varied client base. We have an understanding of the courts up and down the country as well as disputes involving parental orders/IVF arrangements . We have a collection of reported cases, varied and specialised experience as well as a combined tenacious attitude to argue your case in the best and most effective way possible. Our surrogacy lawyers act for a wide range of individuals from our local City client base to all sorts of individuals based both here and internationally.

If you have any questions please do not hesitate to get in touch on 020 7766 5260 , fill in our ‘How can we help’ form or get in touch.

Frequently Asked Questions

What are the different types of surrogacy?

There are two types of surrogacy. In traditional (also known as straight/partial) surrogacy, the surrogate mother uses the intended father’s semen to inseminate her own egg. In host (also known as full / gestational) surrogacy, IVF is used in the surrogate mother with the egg of the intended mother or a donor egg, giving the surrogate mother no biological link to the child.

Can a surrogate mother keep the baby?

A surrogate mother is the legal mother of the baby under English law, unless and until the courts intervene. This is in contrast to many other countries and does give her the legal right to keep a baby. A couple using a surrogate has to apply to a court for a Parental Order; this order makes them the legal parent and enables the child’s birth certificate to be reissued.

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