Member Article

Creating a family using surrogacy is a popular option for male same-sex couples. Surrogacy is when a woman carries and gives birth to a baby for a couple, or another person. Altruistic surrogacy is available in the UK and preliminary considerations are likely to include, which of the couple will be biologically linked to the child and what type of surrogacy will be used.

One of the conditions when applying for a parental order, which assigns legal parenthood to the couple later on, will require at least one of the couple to be biologically linked to the child.

There are generally two types of surrogacy available: gestational and traditional.

With gestational surrogacy, embryos are created at a fertility clinic using a donor egg - or if one of the couple is transgender they may be able to provide the eggs - and sperm from the intended biological father, which are then transferred to the surrogate.

Traditional surrogacy involves the surrogate using her own egg, with sperm from the intended father and conception taking place using IVF or artificial insemination.

So, who are the legal parents at birth? There can only be two legal parents and the surrogate will always be the child’s legal mother regardless of whether she is biologically linked or not.

If conception takes place at a UK fertility clinic and the surrogate is married or in a civil partnership before fertility treatment, her partner will also automatically be the legal parent unless they do not consent to the treatment.

If the surrogate isn’t married or in a civil partnership and no Human Fertilisation and Embryology Authority (HFEA) forms are signed to say otherwise, the second legal parent will be the one who provided the sperm. However, the other intended father who did not provide the sperm, can be nominated as the second legal parent instead.

To do this, the surrogate and the intended father consenting to be nominated need to complete the relevant HFEA forms. The forms must be signed after they have had information about the different options, the implications of giving consent, the consequences of withdrawing consent, how changes can be made or consent withdrawn, and they must have had the opportunity to have counselling.

If conception does not take place at a UK fertility clinic and the surrogate is not married or in a civil partnership, the intended father providing the sperm will be the legal father. Conception must take place by artificial insemination.

This is a complex area of law and it is extremely important that legal advice from specialist lawyers is sought from the outset by any intended parents trying to conceive through surrogacy. Shoosmiths’ family law team can be contacted here should you have any questions.

In terms of other general information, a good place to start is by visiting the websites of surrogacy agencies, such as www.mysurrogacyjourney.com or COTS (Childlessness Overcome Through Surrogacy) www.surrogacy.org.uk, where there is a wealth of information.