You may need to create embryos using donor egg and donor sperm. If the embryos are transferred to you and you give birth, you immediately have legal mother status regardless of biological connection. If you are married, your husband/partner will also have legal parent status unless certain forms were signed at the fertility clinic before embryo transfer, making clear that they do not consent to being legal parent.
If you cannot carry the child and you need a surrogate, it is essential for you to take legal advice before considering surrogacy either in the UK or aboard. In most destinations, there is no clear legal pathway to become legal parent after a double donation arrangement.
In the UK, the lady giving birth (surrogate) is the legal mother. If she is married, her husband/partner will be the second legal parent unless otherwise declared in writing at a clinic before embryo transfer. To become legal parent(s) and extinguish the rights of your surrogate (and her husband/partner if married), you need a Parental Order. Your surrogate’s legal rights are never extinguished without a Parental Order.
Currently, UK law does not support Parental Order applications where there is no biological connection. This means that you cannot secure a Parental Order and therefore your surrogate will remain the legal mother. This fact will deter most UK surrogates.
If you are using a surrogate abroad, there are several things for you to consider in the destination that you choose :-
- Does the law permit surrogacy where there is no biological connection?
- Will you be deemed legal parents in that country and get a birth certificate in your name regardless of biological connection?
- If you need to go through an adoption process abroad to secure legal parent status there, will the adoption be recognised in the UK. This is crucial to establish before you do anything because in some cases adoption from abroad without permission from a UK authority is contrary to law.
- Will you be able to establish British citizenship to secure travel documents to return to the UK? This may be possible in some cases, please ask for further information.
You must take advice before starting the process because this is a very high risk area. There are cases where it has been impossible to return home with the child.
You will need permission from an authority in the UK for the child to remain in your care because under UK law, you are not the legal parents. It is not possible for you to become legal parents using the Parental Order route therefore, you need to look at other options such as adoption or an Order under the Children Act. This needs careful planning and advice before embryo transfer to avoid committing an offence.
You must get legal advice from a UK lawyer in writing to be certain of your position before any treatment abroad with a surrogate where you have no biological connection.
Please call surrogacy lawyers for advice on 01727 884 688 / 07980 917882 or e-mail directly on harjit@surrogacylawyers.co.uk
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I provide legal advice on surrogacy based on the law in England and Wales.
I have acted for clients working with many agencies across the world. I will not recommend any surrogacy provider, destination, agency or clinic. If my advice concludes that you can become legal parents following the arrangement you are considering, it should not be taken as advice to proceed. If I have acted for couples who have entered into similar arrangements, you should not take that as advice to proceed. You must always do your own due diligence on any agency / destination. A successful arrangement for someone else won’t always mean a successful arrangement for you. I will not take part in any negotiations for your surrogacy arrangement nor, will I review your surrogacy contract.