Surrogacy law for same-sex parents

Surrogacy is more rare for female same-sex couples.  If you are planning to conceive with one of you carrying the other’s biological child and you both being parents this is not surrogacy – it is intra-partner IVF or co-maternity. Surrogacy is where someone else carries a pregnancy for you without intending to be a parent.

If you need the help of a surrogate to carry your child, your starting point is considering the different types of surrogacy available. All surrogacy involves some legal untangling, and this guide steers you through the UK legal issues you will need to think about.

Will you stay in the UK or go overseas to find a surrogate to help you?

Family court statistics show that UK parents through surrogacy are split reasonably evenly between those who go overseas for surrogacy and those who find a surrogate in the UK.  The law – as well as your experience – will work be different depending on whether you follow a UK surrogacy path or an international surrogacy path.

Surrogacy in the UK

Surrogacy is legal in the UK, but the law prohibits third parties from arranging surrogacy for profit and bars advertising for surrogates, and this can make the process of finding a surrogate lengthy, informal and uncertain. Find out more about the legal framework governing surrogacy in the UK.

Surrogacy agreements are also unenforceable in the UK which means you and your surrogate need to trust each other to transfer parenthood after the birth.  Many parents worry about whether a surrogate might change her mind, but this is incredibly rare in practice. Find out more about UK surrogacy disputes.

International surrogacy

The most common international surrogacy destinations for male same-sex parents are the USA and Canada, because these are countries in which there is an explicitly supportive legal framework for surrogacy which recognises you as the legal parents from birth.  Other countries (for example Mexico and Colombia) also facilitate surrogacy for same-sex parents but without an established legal framework, which makes it riskier. With any international surrogacy path you should explore things very careful to satisfy yourselves that you feel comfortable with the legal framework, the risk, the ethics, the experience you are likely to have, the costs and the long term implications for your child.

Many parents look overseas for surrogacy because it gives legal certainty: the knowledge you will be recorded on your child’s birth certificate immediately as the parents.  However, it is important to understand that, even if that is the case, you will not be recognised as the parents for UK law purposes and will need to follow an additional UK legal process after the birth.  You will also need to navigate British nationality and immigration law to bring your baby home after the birth and secure his or her UK passport.

Find out more about how UK law works for international surrogacy.

Legal parenthood and parental orders

Your surrogate will be your child’s legal mother under UK law, regardless of where in the world your child is born.  If she is married, then her husband or spouse will be the father/second legal parent. The usual UK law solution to this is a parental order which is a court order you apply for after the birth to reassign parenthood fully and permanently to you both and to extinguish the status of your surrogate and her spouse. Find out more about parental orders.

If you cannot apply for a parental order (for example because you do not satisfy the domicile requirement or because neither of you is your child’s biological parent) then you may be able to apply for an adoption order, or another kind of order, instead. Find out more about using adoption law to remedy legal parenthood in surrogacy cases.

Other issues to consider

Since your parental order will take some months to obtain, you will need to think about legal rights and responsibilities in the interim period before your parenthood is fully resolved.  You might be wondering how you will make decisions about your child’s care during this time, whether you will have a right to time off work and what would happen if either of you died unexpectedly.  All these issues need to managed carefully if you are building your family through surrogacy.

Find out more about managing the post-birth legal issues.

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