UK law and its approach to surrogacy

The laws of surrogacy in the UK remain controversial and restricted. Whilst surrogacy is legal in the UK, the law does not recognise surrogacy as a binding agreement on either party. The law also states that no surrogate may receive any form of payment during or after the surrogacy agreement and that intended parents are to pay only reasonable expenses incurred by the surrogate.

Strict regulation means that English law states that the surrogate woman who gives birth, whether she is genetically related to the child or not, is regarded as the legal mother of the child, who holds the absolute right to change her mind following the birth (S33 Human Fertilisation and Embryology Act 2008). If the surrogate woman is married then her husband, whether he is genetically related to the child or not, is regarded as the legal father of the child. So until parenthood is transferred to the intended parents via a parental order then, in law, the birth-mother (and her husband if she is married) is always treated as the legal parent.

Such restrictions have now created a global market in international surrogacy; international surrogacy is not as regulated as it is in British law. As a result many UK couples are now turning to countries such as India whose surrogacy laws permit commercial surrogacy with affordable limits, as well as giving automatic recognition as ‘legal parents’ to the commissioning parents.

However, a recent case surrounding international surrogacy that hit the headlines involved a Thai surrogacy arrangement where twins were born to an Australian couple. One of the twins, Gammy, had Down’s Syndrome and was allegedly left behind in Thailand with his surrogate mother. The surrogate parents returned to Australia with his twin sister. This triggered a public outcry and global debate about how to improve regulation of international surrogacy arrangements.

However cases like these remain rare, and more often than not hundreds of parents conceive much-wanted children through international surrogacy. And with legal support and advice this is achieved.

If you would like to discuss an international surrogacy arrangement, or if you are thinking about any surrogacy arrangements then speak with our experienced surrogacy solicitor, Jeetesh Patel.