Surrogacy for gay couples - 10 things you should know

Same-sex marriage may now be legal, but surrogacy remains a legal minefield in the UK.

Surrogacy is an increasingly popular route to parenthood for gay couples, enabling them to have a child genetically connected to one of them.  UK based couples should, however, be fully aware of the legal implications (at home and abroad) before embarking on the surrogacy journey.

Here are my top ten need-to-know pointers if you are considering surrogacy:

1. The  availability of surrogates in the  UK is limited – in part due to the legal restrictions on advertising  for surrogacy.
    
2. Surrogacy contracts/agreements are NOT enforceable in the UK.
    
3. Because  of the limitations of surrogacy in the UK, many couples go abroad.  There is an ever increasing number of  countries with surrogacy industries. The most popular, gay friendly, surrogacy market continues to be California   in the US, but Thailand and Mexico also offer surrogacy for gay  couples.  India and Russia do not allow gay surrogacy.  It is critical  to research the particular  country’s views on gay surrogacy BEFORE you enter into an arrangement  in that country.
    
4. Surrogacy is not currently regulated so couples need to beware of scams; research the clinic and your chosen agency  very carefully and ask to speak to previous clients of the agency about  their experiences before you sign up.
    
5. In  the UK, it is illegal for a third  party to negotiate a surrogacy agreement on a commercial basis.  So, your UK legal advisor will not be  able to advise you on the surrogacy contract.  Make sure you engage a specialist lawyer  in the relevant jurisdiction where the surrogacy is to take place.
    
6. Under English law, no matter where the surrogacy takes place, the surrogate mother is the legal mother of the child and has parental responsibility for the child meaning all legal rights and responsibilities in relation to the child (e.g. passport applications,  schools, medical treatment). It follows then that even if you or your husband/ wife/partner is the genetic father/mother of the child, if the surrogacy has taken place abroad, you will not have automatic parental responsibility for the child until you have obtained a Parental Order.
    
7. To  become the legal parents, you need to make an application to the English Court for a Parental Order.  This Order crucially extinguishes the surrogate mother’s status as the legal mother. The application must be made within 6 months of the child’s birth or you will forfeit the right to apply unless you pursue other options, for example, adoption.
    
8. A Parental Order is  necessary even if you are named on the birth certificate or you have  applied to become the legal parents in the country of birth (for example, in the US, couples  can apply for a pre-birth order naming them as the legal parents).
    
9. Immigration issues may  arise if you go abroad for surrogacy.  In the US, the  child will be granted a US passport, meaning you can travel back to the UK  shortly after birth.  In other  countries, check carefully whether the child will be granted a passport by  the birth country.  If not, you will  need to make a UK passport application from abroad so that the child can travel  to the UK on a British passport. Beware you could be stuck in the country  for a significant period of time (since applications from abroad can take  over 16 weeks).
    
10. Couples who have  children through surrogacy arrangements are not currently entitled to paid  maternity or paternity leave in the  UK, however that is due to change next year.

Surrogacy can be a legal minefield but it is an increasingly popular route for many couples and it is often successful – as long as you research carefully and take advice early.

This content of this blog was first published in Fyne Times in April 2014.

Further information

For further information on international surrogacy law, see our services page on this subject and feel free to contact us.

You may also be interested to read the following blogs and articles about the complexities and developments in international surrogacy:

• International surrogacy case update – the importance of domicile over residence in Parental Order applications
• Surrogacy case update - Judge warns of the legal pitfalls of surrogacy arrangements
• International surrogacy laws are not keeping up with changing social patterns
• The Indian surrogacy debate continues and rules are tightened
• Addressing the challenges of overseas surrogacy
• Nationality and immigration pitfalls in international surrogacy