SURROGACY

When using a surrogate mother, the following should be considered.

• A Surrogate legally becomes the mother of the child

• Their name will be written into the birth certificate

• Parental responsibility lies with the Surrogate 

• In the eventuality that the surrogate dies and the child survives, legal responsibility passes to any spouse of the Surrogate (unless it is proven that the spouse did not consent to the surrogacy arrangement

• To change this position an application for a Parental Order must be made within 6 months of the birth

• The Surrogate (and spouse) must consent to this order being made

Please see below the law relating to this:

Section 54(1) of the Human Fertilisation and Embryology Act 2008 (HFEA 2008) provides “that on an application for a Parental Order by two people, a Parental Order provides for a child to be treated in law as the child of the applicants if:

1. the child has been carried by a woman who is not one of the applicants, as the result of the placing in her of an embryo or sperm and eggs or her artificial insemination, and

2. the gametes of at least one of the applicants were used to bring about the creation of the embryo, and

3. the conditions set out in HFEA 2008, ss 54(2)–54(8) are satisfied”

It is therefore of maximum importance then that both the surrogate and the intended parents should make Wills to ensure the desired outcome in relation to the child.

Particular reference should be made within the Will of the Surrogate regarding the guardianship of the child until such time as a Parental Order has been granted naming the intended parents as guardians.

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