The people to talk to for

Surrogacy & IVF.


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 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. We have an understanding of the surrogacy process, both in the U.K and abroad.

Do you think you need legal help with surrogacy and IVF?

Call the family law team to discuss your options

Telephone: +44 (0)20 7870 3877

or email: family@fletcherday.co.uk

What are surrogacy arrangements

Surrogacy arrangements are not contractually enforceable in England, in contrast to the position in some USA states and other countries. 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 and surrogacy

To make sure you are 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 are:

  • 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.

“OVER the past 15 years, international surrogacy has grown from a niche practice catering only to a few adventurous couples, to a convenient response to infertility for those who would otherwise be hindered by restrictive national regimes.”

“The Difficulty of Enforcing Surrogacy Regulations”

Claire Fenton-Glynn, Cambridge Law Journal, March 2015

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    FAQs
    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.