For many people surrogacy opens the door to starting a family. In order to keep the process smooth and inexpensive it is important to seek advice from a solicitor on the legal aspects throughout. Issues can arise in particular with regard to immigration, payments made to the surrogate mother and parental orders.
The law in this area is hard pressed to keep up with the relevant scientific advances but for now there are two main types of surrogacy recognised by law:
‘Total’ or ‘gestational’ surrogacy - where the surrogate mother is not the child’s biological mother and as such has no genetic connection to the child, i.e. donors provide both the sperm and the egg.
‘Partial’ or ‘traditional’ surrogacy - where the surrogate mother is the child’s biological mother, i.e. the donor parents provide the sperm only and the surrogate mother provides the egg.
The surrogate mother, after giving birth, is the child’s legal mother until the donor parents take over by an order of the court known as a ‘parental orders’. This process requires a number of conditions to be fulfilled, many of which need to be set in place before the pregnancy is started in order to ensure that the process of applying to the court for a parental order is smooth and inexpensive.
Failure to comply with the law on surrogacy, for example regarding the prohibition upon certain payments to surrogate mothers, can lead to a lengthy, expensive and often stressful court process. The best way to avoid this is to seek legal advice from the outset.