The legal principles surrounding surrogacy arrangements are very different under English law from the law in many other countries. The first thing to understand is that a surrogacy agreement in England is not an enforceable contract. It is also a criminal offence for a third party to act as a broker for surrogates and intended parents, and advertising – whether as a surrogate or someone looking for a surrogate – is prohibited.
Under English law, irrespective of any biological connection to the baby, the woman who gives birth to that baby is treated as the child’s legal mother. If she is married or in a civil partnership, her husband or civil partner will be treated as the child’s other parent.
That clearly is not what is intended by the couple who make the arrangement with the surrogate. Their solution is to apply to the family court for a parental order within 6 months of the date of the baby’s birth provided:
By contrast in the USA, a surrogacy contract is legally binding. In many US states it is possible to go to court before the birth of the baby to have the court approve the agreement and make an order enabling the intended parents to be recorded as the parents on the birth certificate. However, although this enables the baby to be given a US birth certificate, that certificate does not mean that the intended parents are recognised in England and Wales as the parents. Therefore, in order to bring the baby into the UK to live, the intended parents must obtain entry clearance to bring the baby into the UK and then must seek a parental order from the English court in order to put the right legal framework on their relationship with the baby.
Hughes Fowler Carruthers has advised a number of intended parents about both domestic and international surrogacy arrangements and has good experience in this area.