Associate Rebecca Ledgerwood, in our Family Law team, explains the legal process and pathways for intended parents and surrogates.
Surrogacy offers a route to parenthood in circumstances where it may otherwise be impossible. In England and Wales, it comes with unique legal principles. These differ from other jurisdictions and it is vital that any intended parents understand the legal framework from the outset.
Types of surrogacy
There are two main forms of surrogacy:
- Traditional surrogacy: where the surrogate is the genetic mother, usually conceived through artificial insemination. Gestational surrogacy: where IVF is used and the surrogate has no genetic connection to the child.
- Commercial surrogacy: is not lawful in England and Wales, only altruistic surrogacy is. This means that surrogates cannot be paid for carrying a child/ren but can be reimbursed for reasonable expenses.
Who are the legal parents at birth?
In England and Wales, the surrogate is always the legal mother at birth, regardless of genetics. Legal fatherhood (or second parenthood) depends on factors such as whether the surrogate is married and how conception took place.
This can be particularly complex in overseas surrogacy arrangements, where intended parents may return to the England and Wales without being recognised as the child’s legal parents.
Becoming the legal parents: Parental Orders
A Parental Order is the only way to transfer legal parentage from the surrogate (and her spouse, if applicable) to the intended parent(s) under English law.
Without a Parental Order, intended parents may face difficulties making decisions about their child’s education, medical care, travel, inheritance, and long-term security.
Parental Orders are required even where a foreign birth certificate names the intended parents as parents.
Who can apply for a Parental Order?
- Couples (married, civil partners, or long-term partners)
- Single applicants (since 2019)
At least one applicant must have a genetic link to the child and the application must be made within six months of birth.
The court must also be satisfied that the surrogate has freely given informed consent and that only reasonable expenses have been paid.
Practical guidance
If you are considering using a surrogate to create your family below are some practical tips:
- Seek specialist legal advice early on
- Keep clear records of payments and agreements
- Maintain open communication with the surrogate and professionals involved
- Be prepared for court timescales and evidence requirements
Above all, transparency and planning are key to creating a secure legal foundation for the arrangement and ensuring a smooth route to obtaining a Parental Order.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
