Building a family through surrogacy is an emotional and complex journey and navigating the legal landscape can be just as challenging. For same-sex couples, this path often has unique legal hurdles that can be nerve wracking. Without proper legal advice, parents can face significant issues, including custody disputes and a lack of legal recognition. We are here to help you understand these challenges and ensure a smooth, secure journey to parenthood.

The Surrogacy Landscape: Statistics & Legal Realities

Surrogacy is a growing option for many families in the UK. Data from the English family court shows a 350% growth in parental order applications over the past 12 years. A significant percentage of these applications comes from same-sex couples, with the number of applications from same-sex couples increasing more than fivefold between 2014 and 2018.

According to the Child and Family Court Advisory and Support Service (CAFCASS), 47% of all parental order applications in the family court have been for UK surrogacy arrangements since 2014.

Despite this growth, the UK’s surrogacy laws are lagging, and families often face legal challenges within the surrogacy process such as:  

• Parental Orders: In the UK, the surrogate is the legal mother at birth, and if she’s married or in a civil partnership, her spouse is the second legal parent. This is true even if the child is genetically related to the intended parent(s). Intended parents must apply for a parental order to become the legal parents and extinguish the surrogate’s legal rights. This can be a lengthy and complex process, and without it, you have no legal rights to your child. It is therefore crucial that you receive sound legal advice and an agreement that reflects the same.

• Unenforceable Agreements: UK surrogacy agreements are not legally binding contracts. While courts will consider the intentions of all parties, the agreement itself can’t be enforced. This means that if a dispute arises, you must rely on the court’s discretion which can lead to unpredictable and heartbreaking outcomes. It is therefore crucial that the agreement is carefully drafted, and all parties receive independent legal advice.

• International Surrogacy: Many same-sex couples pursue surrogacy abroad, particularly in countries with more supportive legal frameworks, like the USA and Canada. However, UK law is still applicable in these situations. Even if you’re named on the birth certificate in another country, you still need to obtain a parental order in the UK to be recognised as your child’s legal parents. This often involves navigating both UK immigration and family law. Whilst at present, we do not provide immigration advice, we are happy to work with your nominated immigration advisor to ensure the legal process is as smooth as possible.

The Custody Battle

Lack of legal input can lead to severe issues that threaten your family’s security.

For example, there have been cases that illustrate the importance of clear agreements, such as the case of H v S (Surrogacy Agreement) [2015] EWHC 555 (Fam). The High Court case involved a male same-sex couple who had a child via surrogate who claimed she had agreed to a co-parenting arrangement, as opposed to a full handover, after the birth. Because surrogacy agreements are not legally enforceable, the couple was forced into a painful and expensive court battle to secure full legal custody. The judge ultimately sided with the intended parents, but the case highlights the legal risks when arrangements aren’t clearly defined and professionally managed from the start.

The Lack of Legal Status

As mentioned, it is also paramount to consider immigration laws during your surrogacy journey.

For example, there is a well-known case in which a same-sex couple went through a successful surrogacy process abroad and were listed as the legal parents on the foreign birth certificate. However, they failed to apply for a UK parental order upon returning home. They faced serious legal complications years later when trying to register their child for school and obtain a British passport as the UK government didn’t recognise their legal parenthood. Remember: the person who gives birth is the legal mother under UK law, regardless of where the child was born.

The landmark case of Re X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam) is another relevant example: twins born to British parents via an international surrogate were left “stateless and parentless” due to the complexities of international law. The High Court had to intervene to grant the first-ever parental order in an international commercial surrogacy case. This case demonstrates the critical importance of understanding and navigating both international and domestic laws to ensure your child has a clear legal identity.

The above highlights how essential it is to have expert guidance. The journey to parenthood is meant to be joyful, not filled with legal uncertainty. Our role is to handle the complex legal processes so you can focus on what truly matters — ­your growing family. For further information and guidance on your surrogacy journey, contact us today.

Email: nmitton@calegaladvice.co.uk

Telephone: 0300 561 2600