Surrogacy

Guidance

The main legislation which applies is the Surrogacy Arrangements Act 1985.

In a surrogacy arrangement, if the intended parents wish to become the legal parents of the child, they may either apply for a parental order or apply to adopt the child. The effect of the order is to transfer parental responsibility 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, i.e. as the egg or the sperm provider.

If the commissioning couple cannot apply for a parental order because neither are genetically related to the child, then adoption is the only option and a registered adoption agency must be involved.

As regards to adoption in surrogacy cases, the surrogate mother may choose to place her child with commissioning parents for adoption. If so, a registered adoption agency must be involved in the surrogacy process; otherwise, by virtue of Section 11 of the Adoption Act 1976, unless the child was placed pursuant to an order of the High Court or with a relative, the placement is illegal. If the arrangement does not go so far as to be an arrangement for adoption, it may be a private fostering arrangement (see Private Fostering Procedure). Not withstanding the illegality of the private adoption arrangement, if the commissioning parents wish to adopt the child and apply for an Adoption Order, they must give notice to the local authority who must then investigate and report to the court in the normal way. If the surrogate mother changes her mind after the child has been placed with the commissioning parents, her consent to adoption must be dispensed with by the court before making an Adoption Order.

As regard surrogacy and fostering arrangements, the commissioning parents would be entitled to seek care and control of the child under the inherent jurisdiction of the High Court. However, the local authority can intervene and obtain an Emergency Protection Order (see Application for Emergency Protection Orders Procedure) while carrying out enquires about the suitability of the commissioning parents.