Common misconceptions about surrogacy

04 August 2023

An increasingly popular route to parenthood in the UK, surrogacy is a complex process, with many common misconceptions - some of which are perpetuated by the media. In this blog, we bust some of the widespread myths around surrogacy arrangements. These include:

Surrogacy is illegal in the UK

Surrogacy is legal in the UK, but commercial surrogacy is not allowed. It is illegal for surrogates or intended parents to advertise, or for third parties to arrange a surrogacy for profit. It is worth noting that surrogacy agreements are not enforceable in the UK; however, it is still worth recording what has been agreed in writing, as this will ensure that each party had the same expectations of the arrangement at the outset, and will reduce the likelihood of dispute further down the line.

I should instruct a solicitor to help me draw up a surrogacy agreement

It is illegal for a third party (including a solicitor) to arrange a surrogacy for profit. Whilst you can - and should - take legal advice before entering into a surrogacy, to make sure you understand your rights and the law, your solicitor will not be able to assist with the surrogacy agreement itself. There is an exemption which allows non-profit organisations to assist with the formulation of a surrogacy arrangement. There are a number of specialist surrogacy organisations which can provide support, including introductions to potential surrogates and support with recording a surrogacy agreement. 

Paying a surrogate is illegal in the UK

Paying a surrogate is not illegal in the UK. Whilst it is not an offence to pay a surrogate, this is an issue that the family court will need to consider. Generally, only reasonable expenses should be paid to surrogates in the UK, but the court does have discretion to authorise payments over and above this, if it considers it appropriate to do so. When deciding whether to grant a parental order, the court will be focused on what is in the child’s best interests. The best advice we can give to intended parents is to keep an accurate record of what they have paid, and to whom – and, ideally, to keep receipts. The court will need to understand this in order to decide whether to retrospectively authorise any payments they consider to be beyond reasonable expenses.

If I have a child by surrogate, I will automatically be considered the child’s parent upon birth

In the UK, the surrogate is always considered to be the child’s legal mother. If she is married, her husband is considered to be the child’s legal father. If she is not married, the intended father is considered to be the legal father upon birth. Generally, the intended parents must apply for a parental order to become recognised as the child’s legal parents. This order also extinguishes the surrogate’s relationship to the child (and that of her husband, if she has one). 

If I have a child by surrogate abroad and am on the child’s birth certificate, I will be considered to be the child’s legal parent in the UK

Even if the intended parents are on the child’s birth certificate and are recognised as the child’s legal parents in the country of birth, this will not be recognised in the UK and the surrogate will be considered to the child’s legal mother. It is, therefore, still necessary and important to make an application for a parental order on return to the UK. If the intended parents fail to apply for a parental order following an overseas surrogacy arrangement, this could give rise to many issues - including inheritance and parental responsibility, particularly if the intended parents later separate.

I can’t apply for a parental order until six weeks after the birth

Whilst the surrogate cannot give her consent to an application for a parental order until six weeks after the birth, the application can be lodged earlier at court. 

Single people can’t have a child through surrogacy

When parental orders were first introduced, only couples could apply. This meant it was not feasible for a single person to have a child through surrogacy.  In January 2019, the law was changed to allow a single person to make an application for a parental order, as long as they have a genetic link to the child.  

If the surrogate wants to keep the baby, there is nothing the intended parents can do

First, it is incredibly unusual for a surrogate to want to keep the baby. Surrogates often talk about how the idea that they are ‘giving up’ a baby is a misconception. They generally never consider that the baby they are carrying is theirs: they are simply looking after it throughout the pregnancy on behalf of the intended parents.

It is true that a parental order can only be made with the surrogate’s consent. Should a surrogate refuse consent, the court cannot make a parental order; however, applications can be made for an adoption order or a child arrangements order that the child lives with the intended parents. 

The best way to avoid disputes later down the line is to build up trust between the surrogate and the intended parents; have a clear written agreement that sets out each parties’ expectations of the arrangement; and ensure that everyone involved has had access to counselling to explore the emotional and practical implications of the arrangement. 

A woman will opt for surrogacy to save her figure and avoid pregnancy

Surrogacy is an emotional and expensive way for intended parents to have a baby. Currently, there is a vast amount of paperwork, cost and court procedure involved in being recognised as the legal parents of any resulting child. From our experience, the motivating factors for choosing surrogacy are usually based on medical necessity, rather than choice – this inevitably applies to same-sex male couples and single male parents. For women who have chosen surrogacy, this is usually as a last resort after many failed attempts and invasive methods to try and carry a baby herself.

If you have any questions about surrogacy, please contact us to arrange an initial advice meeting with our surrogacy specialists Lauren Guy and Victoria Maxwell.