surrogacy and the legal process for intended parents and surrogates in England and Wales Updated 23 July 2021; SUMMARY

 

SOURCE :Guidance Having a child through surrogacy The surrogacy pathway: surrogacy and the legal process for intended parents and surrogates in England and Wales Updated 23 July 2021

🌟 Starting the Surrogacy Process

 Surrogacy Journey Flowchart

1️⃣ Decide if Surrogacy is Right for You

➡️ Consider reasons:
✅ Infertility, recurrent miscarriages
✅ Failed IVF treatments
✅ Health risks in pregnancy
✅ LGBT+ family planning

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2️⃣ Find a Surrogate & Donor (If Needed)

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3️⃣ Choose a Surrogacy Organisation

➡️ Why join an organisation?
✔️ Provides legal & emotional support.
✔️ Helps screen & match surrogates & IP(s).

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4️⃣ Surrogacy Agreement

➡️ What it includes:
📜 Written agreement (not legally binding) covering:
✔️ Pregnancy & medical arrangements
✔️ Financial agreements (expenses)
✔️ Birth & post-birth plans
✔️ Future contact expectations

💡 Tip: Open discussions help avoid conflicts later.

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5️⃣ Start Conception at a Fertility Clinic

➡️ Surrogacy Methods:
✔️ Host Surrogacy (Gestational) – IVF, no genetic link to the surrogate.
✔️ Straight Surrogacy (Traditional) – AI/IUI, surrogate uses her own egg.

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6️⃣ Pregnancy & Birth in Surrogacy

➡️ Hospital & Medical Planning:
✔️ Inform hospital staff about the surrogacy arrangement.
✔️ Create a joint birth plan with the surrogate.
✔️ Decide who will be present at birth.
✔️ Plan for hospital discharge & baby handover.

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7️⃣ Apply for Legal Parenthood (Parental Order Process)

➡️ When Apply?

✔️ Must apply within 6 months of birth.

➡️ Legal Criteria:
✔️ At least one IP must be genetically related to the child.
✔️ Surrogate must give consent (after 6 weeks).
✔️ IP(s) must be over 18 & domiciled in the UK.

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8️⃣ Parental Leave for Intended Parents & Surrogate

➡️ Intended Parents' Rights
✔️ Up to 52 weeks of adoption leave.
✔️ One IP can claim adoption pay, the other can take paternity leave.
✔️ Shared leave option – parents can split time off.

➡️ Surrogate’s Rights
✔️ Surrogate keeps maternity leave & pay (if eligible).
✔️ Her leave does not affect the IP(s)’ adoption leave.
✔️ IP(s) can attend antenatal appointments with her.

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9️⃣ Life After Surrogacy

➡️ Keeping in Touch with the Surrogate
✔️ Decide early if you want to stay in touch.
✔️ Some families keep contact, others prefer space.
✔️ Open communication helps avoid misunderstandings.

➡️ Talking to Your Child About Surrogacy
✔️ Tell them early (even in preschool).
✔️ Be honest & positive about their birth story.
✔️ Use support networks

NOW IN DETAIL 

🤰 What is Surrogacy?

Surrogacy is when a woman carries and gives birth to a baby for someone who cannot have a child themselves. 

This guide provides important information about surrogacy in the UK, including how to start the process, legal aspects, and key steps involved.

📌 Key Steps in the Surrogacy Process

🌟 Steps in the Surrogacy Journey

1️⃣ Decide if Surrogacy is Right for You

2️⃣ Find a Surrogate and Donor (If Needed)

3️⃣ Choose a Surrogacy Organisation

4️⃣ Surrogacy Agreement

5️⃣  Conception 

6️⃣ Pregnancy & Birth in Surrogacy

7️⃣ Apply for Legal Parenthood Through a Parental Order

8️⃣ Parental Leave for Intended Parents and Surrogate

9️⃣ Life After Surrogacy

1️⃣ Decide if surrogacy is right for you

Before starting, it's important to understand if surrogacy is the right choice for you. People consider surrogacy due to:
✅ Recurrent miscarriages
✅ Failed IVF treatments
✅ Health risks during pregnancy
✅ Medical conditions (e.g., premature menopause, hysterectomy)                                                        ✅ LGBT+ parents wanting to build a family

2️⃣ Find a surrogate and donor (if needed)

👩‍👧‍👦 Who are the Intended Parents (IP(s))?

Intended parents (IP(s)) are individuals or couples who cannot have a child on their own and choose surrogacy to become parents. They can be:
👫 Heterosexual couples
👬 Same-sex couples
👤 Single individuals

To apply for legal parenthood, at least one intended parent must be biologically related to the child.

🤱 Who is a Surrogate?

A surrogate is a woman who carries a baby for intended parents. She may or may not be genetically related to the child. Surrogates often choose this journey because they want to help others build families.

💡 Important: Surrogates in the UK are only paid for reasonable expenses, not for profit.

🥚 Definition of Surrogacy Types

🔹 Host Surrogacy (Gestational Surrogacy): A type of surrogacy where the surrogate carries a baby without a genetic link to the child. The embryo is created using the intended parents’ or donors’ sperm and eggs through in vitro fertilisation (IVF) and is transferred to the surrogate’s uterus.

🔹 Straight Surrogacy (Traditional Surrogacy): A type of surrogacy where the surrogate uses her own egg, making her genetically related to the child. Conception occurs through artificial insemination using the intended father’s or donor’s sperm.Straight (Traditional) Surrogacy

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3️⃣ Choose a surrogacy organisation

⚠️ Should You Go Independent or Join an Organisation?

It is not recommended to go through surrogacy alone. Instead, joining a recognised UK surrogacy organisation can help ensure a smooth and legally secure process. These organisations provide guidance, support, and essential checks (medical & background screening) to reduce risks.

✔️ Surrogacy is legal in the UK.
❌ However, surrogacy agreements are not enforceable by law.

🚫 What is Illegal?

❌ Advertising that you are looking for a surrogate or offering to be one.
❌ Commercial surrogacy (paying a surrogate beyond reasonable expenses).
❌ Third parties (e.g., solicitors) negotiating surrogacy agreements for payment.

👶 Who is the Legal Parent?

• At birth, the surrogate is the legal mother of the child.
• If she is married, her spouse is the second legal parent unless they consent otherwise.
• A parental order is required to transfer legal parenthood to the intended parents.

📌 To apply for a parental order:
✔️ At least one intended parent must be genetically related to the baby.
✔️ The surrogate must consent to transfer parenthood.

💡 Tip: Consult a legal expert to ensure you meet all conditions before starting the process.

⚠️ Understanding the Risks

📜 Surrogacy Agreement Risks

While most surrogacy journeys go smoothly, some risks include:
🔸 A surrogate changing her mind about handing over the baby.
🔸 Intended parents deciding not to proceed after birth.
🔸 Disagreements between the surrogate and intended parents.
🔸 Different expectations regarding contact during and after pregnancy.

✅ How to Minimise Risks:
✔️ Get to know each other before making an agreement.
✔️ Ensure everyone fully understands the emotional and legal aspects.
✔️ Build trust and have open discussions.
✔️ Create a written agreement (though not legally binding, it sets clear expectations).

4️⃣ Surrogacy Agreement 

A surrogacy agreement is a written understanding between the intended parents (IP(s)) and the surrogate (plus her partner, if applicable). While it is not legally binding in the UK, it helps:
✔️ Set clear expectations
✔️ Ensure smooth communication
✔️ Address key decisions before starting the process

💡 Tip: Discuss all aspects thoroughly before signing to avoid misunderstandings later.

📌 What Should Be Included in a Surrogacy Agreement?

Every surrogacy journey is unique, but key elements often include:

👨‍👩‍👧‍👦 Details of All Parties

• Names of intended parents (IP(s))
• Surrogate’s name & her partner’s/spouse’s details (if applicable)
• Marital status of all parties

🏥 Pre-Conception & Conception Arrangements

• Type of surrogacy (gestational/host or traditional/straight)
• Where conception will take place (clinic or home insemination)
• Number of cycles & embryos to transfer

🤰 Pregnancy Arrangements

• Health & well-being plans for the surrogate
• Agreement on medical tests & antenatal care
• Intended parents' involvement in appointments & decisions

👶 Birth & Post-Birth Plans

• Delivery location & birth preferences
• Who will be present at birth
• Post-birth care & handover process

⚠️ What If Something Goes Wrong?

• Plans for miscarriage, stillbirth, multiple pregnancy (e.g., fetal reduction)
• Decisions regarding termination for medical reasons
• Steps in case of a relationship breakdown between parties

💬 Future Communication & Relationship

• Level of ongoing contact between surrogate & intended parents
• How the child will be told about their birth story

💰 Financial & Legal Considerations

• Surrogate’s expenses (medical, travel, maternity clothes, etc.)
• Legal fees for the parental order application
• Insurance & wills (in case of unexpected events)

✔️ The surrogate is the legal mother at birth (even if she has no genetic link to the baby).
✔️ A parental order is required to transfer legal parenthood to the intended parents.
✔️ If payments exceed reasonable expenses, the court may review the case before granting the parental order.

5️⃣ Start conception at a fertility clinic

🤰 Trying to Conceive (TTC) in Surrogacy

The trying to conceive (TTC) stage can be an exciting yet emotional journey for everyone involved. 

📊 Factors Affecting Pregnancy Success Rates

Several factors influence the chances of pregnancy:
✔️ Surrogate’s ability to conceive
✔️ Age of the woman providing the eggs (younger eggs = higher success rates)
✔️ Quality of sperm (from the intended father or donor)
✔️ Type of fertility treatment used

💡 Did You Know?

• The pregnancy rate per embryo transfer for women of all ages is around 26.5%.
• For women aged 40-42, the success rate drops to 13.7%.
• The goal of fertility treatment is to achieve a single healthy baby—twins or more increase health risks.

🏥 Choosing a Fertility Clinic

There are many HFEA-licensed fertility clinics in the UK. Here’s what to consider:
✔️ Does the clinic already have stored embryos?
✔️ Do they offer donor sperm/eggs if needed?
✔️ What are their surrogacy success rates?
✔️ How close is the clinic to the surrogate?
✔️ Cost breakdown (fertility treatment can be expensive).

💡 Find a clinic near you using the HFEA Clinic Finder.

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🏥 Fertility Treatment for Host (Gestational) Surrogacy

🧬 Creating Embryos for Host Surrogacy

Embryos are created using:
✔️ Eggs from the intended mother + Sperm from the intended father
✔️ Donor eggs + Intended father’s sperm (if the intended mother cannot use her own eggs)
✔️ Donor eggs + Donor sperm (for same-sex male couples or single IPs)

The embryos can be fresh or frozen:
🔹 Fresh embryos – The surrogate’s cycle must be synchronized with the egg provider’s cycle.
🔹 Frozen embryos – Already created embryos are thawed and transferred.

🧪 Testing for Intended Parents (IP(s))

• Blood tests & screenings (as per egg/sperm donor guidelines).
• Genetic screening & infectious disease tests (HIV, Hepatitis B/C).
• Sperm analysis & quarantine (usually 6 months).

🩺 Testing for Surrogates

• Medical & obstetric history review.
• Blood screening for infections.
• Saline Infusion Sonogram (SIS) – Checks for uterine abnormalities (fibroids, scar tissue).
• Surrogate’s partner (if any) also undergoes blood tests.

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🏥 The IVF Process for Surrogacy

1️⃣ Egg Provider Takes Medication – Stimulates egg production.
2️⃣ Egg Collection – Eggs are retrieved through a simple procedure.
3️⃣ Fertilization –

• IVF (eggs & sperm mixed in a dish).
• ICSI (a single sperm is injected into each egg).
  4️⃣ Embryo Monitoring – Best-quality embryos are chosen.
  5️⃣ Embryo Transfer – One or two embryos are placed into the surrogate’s womb.
  6️⃣ Pregnancy Test – Done 14 days after transfer.

🔹 If positive: A scan confirms pregnancy progress.
🔹 If negative: Another attempt can be made after two menstrual cycles.

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🏡 Traditional Surrogacy: IUI or Home Insemination

In traditional surrogacy, the surrogate uses her own eggs and conceives through:
🔹 Intrauterine Insemination (IUI) at a clinic.
🔹 Home insemination using donor sperm.

If done at a clinic, the surrogate:
✔️ Takes medication to stimulate egg growth.
✔️ Has ultrasound scans to monitor ovulation.
✔️ Undergoes insemination at the optimal time.

💡 Home insemination should be done with medical guidance for best results.

6️⃣Pregnancy & Birth in Surrogacy

The pregnancy and birth process in surrogacy requires clear communication with medical professionals, careful planning, and mutual understanding between the surrogate and the intended parents (IP(s)).

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🏥 Working with Hospital & Medical Staff

✔️ Be prepared to introduce yourselves frequently – You will meet different hospital staff at every visit, so explain the surrogacy arrangement clearly.
✔️ Arrive early for appointments – Extra time may be needed to explain the situation.
✔️ Ensure healthcare professionals acknowledge both the surrogate & IP(s) – While the surrogate is the primary patient, discussions about the baby’s health should involve the intended parents.
✔️ Attend antenatal classes – IP(s) can join classes with the surrogate or separately to prepare for parenthood.
✔️ Know the hospital’s policy on surrogacy – Some hospitals have specific surrogacy guidelines, while others may follow standard protocols.

💡 Tip: Schedule a meeting with the hospital before birth to ensure they understand your preferences.

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📝 Creating a Birth Plan

A birth plan outlines preferences for labour, delivery, and post-birth care. Since this involves both the surrogate and the intended parents, it is important to discuss:

👶 Who will be present at birth?
🩺 Delivery preferences (natural birth, C-section, pain relief options).
🏥 Hospital stay arrangements (who will care for the baby immediately after birth).
👨‍👩‍👦 Who makes medical decisions for the baby?
🍼 Feeding preferences (bottle-feeding, breastmilk from the surrogate, or formula).
💬 How much involvement will IP(s) have during labour and delivery?

✔️ The surrogate’s wishes take priority regarding labour & delivery.
✔️ IP(s) play a key role in decisions about the baby’s medical care.
✔️ A midwife consultation before birth can clarify hospital procedures & support available.

💡 Tip: A surrogacy organisation or fertility counsellor can help resolve any concerns or disagreements.

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🏠 Taking the Baby Home & Hospital Discharge/Postnatal

🏥 Hospital Discharge Process:
✔️ Some hospitals allow the baby and surrogate to be discharged separately.
✔️ IP(s) should confirm hospital policies in case the baby needs to stay longer for medical reasons.
✔️ IP(s) should not be required to take the baby home outside hospital premises – this handover should happen inside the hospital.
✔️ No referral to social services is needed unless there are other concerns.

💡 Tip: Discuss hospital discharge procedures in advance to avoid confusion on the day of birth.

7️⃣ Parental Order Process in Surrogacy

A parental order is essential for transferring legal parenthood from the surrogate to the intended parents (IP(s)). This legal step ensures that IP(s) become the child’s official parents under UK law.

📌 Why is a Parental Order Needed?

Without a parental order, IP(s) may face legal challenges, such as:
❌ No authority over the child’s education & medical care
❌ Difficulty traveling abroad with the child
❌ Legal complications in case of separation or divorce
❌ Issues with inheritance & pensions
❌ The need to involve the surrogate in future decisions

💡 Even if a surrogacy agreement is in place, a parental order is still required in the UK.

✅ Parental Order Criteria

To apply for a parental order, the following conditions must be met:
✔️ IP(s) must be over 18 years old
✔️ IP(s) can be married, in a civil partnership, or in a long-term relationship (or a single applicant)
✔️ The surrogate (and her spouse, if applicable) must give consent (no earlier than 6 weeks after birth)
✔️ The child must be genetically related to at least one of the IP(s)
✔️ The child must be living with the IP(s)
✔️ IP(s) must apply within 6 months of birth
✔️ At least one IP must be domiciled in the UK
✔️ Surrogate must be paid only reasonable expenses (unless authorized by the court)

💡 If any of these criteria are not met, legal advice should be sought immediately.

8️⃣ Parental Leave for Intended Parents and Surrogate

This refers to the time off work that intended parents (IP(s)) can take after the birth of a baby via surrogacy to bond with and care for their child.

📜 Legal Rights for IP(s)

• 2014 UK legislation allows intended parents to take adoption leave & receive adoption pay.
• To qualify, they must apply for a parental order within 6 months of birth.
• Adoption leave is a “day one” right, meaning there is no requirement for a minimum period of employment before being eligible.

🏠 Adoption Leave & Pay

• Intended parents can take up to 52 weeks of leave if they notify their employer at least 15 weeks before birth.
• Pay structure:
  • First 6 weeks → 90% of salary.
  • Next 33 weeks → Either 90% of salary or a fixed rate (£140.98 per week as of 2017, updated yearly).

👨‍👩‍👧 Who Can Claim Leave?

• Only one intended parent can claim full adoption leave & pay (if there are two intended parents).
• The other parent may qualify for paternity leave (1-2 weeks, if employed).
• Shared parental leave is an option, allowing:
  • Both parents to stay home together for up to 6 months.
  • Parents to stagger their leave to ensure one parent is always home with the baby during the first year.

🤰 Surrogate’s Maternity Leave

• The surrogate retains her full maternity leave rights even though she is not raising the baby.
• She is entitled to:
  • Up to 52 weeks of maternity leave.
  • Statutory maternity pay (if eligible).
• Her maternity leave does not affect the intended parents' adoption leave.

👩‍⚕️ Antenatal Appointments

• Intended parents can take unpaid leave to attend up to 2 antenatal appointments with the surrogate (if she agrees).

9️⃣ Life After Surrogacy

🤝 Keeping in Touch with the Surrogate

✔️ Decide early if you want to stay in touch.
✔️ Some families keep contact, others prefer space.
✔️ Open and honest communication is important.

👶 Talking to Your Child About Surrogacy

✔️ Tell them early, even in preschool.
✔️ Be honest and positive about their birth story.