For couples entering into the surrogacy process, it can seem like a complex system to deal with at an already highly emotional and stressful time in their lives.

The laws in the UK differ significantly from other countries, particularly the US, where commercial surrogacy - making a profit or a business out of it - is legal.

In the UK, surrogacy is legal, but various things connected to it are not. So where does that leave prospective parents?

We asked Jemma Dally, a partner from the surrogacy, child protection and international childcare care department at Goodman Ray, to explain what couples need to know about the process.

What are the different types of surrogacy?

Couples - known in legal terms as the ‘intended parents’ - might choose to use a surrogate if the woman is physically unable to carry a baby, or it would be dangerous for her to do so, or a male same-sex couple want a family.

And there are two types. Firstly, ‘host’ or ‘gestational’ surrogacy is when the surrogate woman’s eggs are not used, and instead an embryo is transferred to the surrogate.

The embryo may be created from the egg and sperm of the intended parents (so the child is 100% biologically related to them) or using either their egg or sperm, together with donor sperm or a donor egg.

Secondly, ‘traditional’ surrogacy is when the surrogate’s egg is used to conceive the child - and the sperm used is that of the intended father.

“It is not illegal for a surrogacy to happen where the egg and sperm are both from a donor, it is however not possible to obtain a ‘parental order’ [to ensure the child is legally theirs] unless at least one of the intended parents has a genetic connection to the child,” says Dally.

Is it legal to advertise for a surrogate?

“It’s a criminal offence to advertise that you are willing to enter into a surrogacy arrangement; looking for a woman to act as a surrogate mother; looking for people who want a surrogate to carry a child; and are able to negotiate or facilitate a surrogacy arrangement,” Dally says.


“This applies to adverts in print, online, TV or radio.”

And that includes a post on social media. It’s also illegal for a third party who receive payment, or expect to, for negotiating or facilitating the arrangement, but this doesn’t apply to non-profit organisations.

So how do couples find a surrogate?

“Most people who arrange it in the UK will know their surrogate - a family member or close friend who has agreed to act as a surrogate for them,” says Dally. If they don’t know each other, it’s likely the parents have gone through a non-profit organisation.

Are couples allowed to pay a surrogate?

Dally says this is an area that’s often misunderstood.

“The law allows intended parents to pay a UK surrogate ‘reasonable expenses’, but there’s no definition of what’s reasonable, and no fixed amount that a court would consider as reasonable.”

She says it isn’t illegal to pay more, it’s simply a consideration for the family court.

“As long as the court is satisfied that the intended parents have acted in good faith, and that the payments are not so disproportionate that the granting of a parental order would be against public policy - so this means, so large or so small that it could be considered to be exploitation - then the court will authorise the payments.

“The issue of large payments usually comes up in international surrogacy arrangements and there has never yet been a case where the court has refused to make a parental order because too much money was paid to the surrogate.”

Who are the legal parents when the child is born?

“The surrogate will ALWAYS be the child’s legal mother - regardless of whether her eggs are used to conceive the child or not,” says Dally.

Furthermore, if the surrogate is married or in a civil partnership at the time she starts to carry the child - her spouse will legally be the child’s second parent (unless they didn’t consent to the surrogacy).

She says if the surrogate is not married then there is a choice as to who the ‘second parent’ is - provided it was done through a licensed fertility clinic (if not, it will be the sperm donor) and a legal ‘parenthood’ form has been signed before conception.


“If no forms are completed and the surrogate is not married, then the intended father will be the second legal parent automatically if he is the biological parent,” says Dally.

“The legal mother, i.e. the surrogate, is responsible for registering the child’s birth.”

Can the surrogate change her mind after the birth?

Actually, yes.

“Surrogacy arrangements are not enforceable under UK law,” says Dally.

“If one of the parties changes their mind, or the circumstances change, the arrangement is not legally binding. It doesn’t matter if it was set out in writing or not.

“So yes, this means that the surrogate could decide she wants to keep the baby, or have a role in the child’s life - whether the baby is biologically her child or not.

“It also means that the intended parents could walk away from the surrogacy arrangement, leaving their surrogate with a baby they did not want or expect to have responsibility for.

“Although this happens rarely -it has happened and there are a number of cases in which the surrogate has changed her mind and she has kept the baby after the birth,” says Dally.

“In the few cases in which this has happened, the surrogate has had no genetic link to the child.”

An application is made to court, which will decide where the child will live and how much time he or she will spend with the intended parents and the surrogate.

“In some cases, the court made a decision that the child should live with the surrogate and spend time with the intended parents, in other cases, the court has transferred the care of the child to the intended parents and ordered time to be spend with the surrogate,” says Dally.

“Biology is not a ‘trump card’. The court will make a decision based on what’s in the best interests of the child.”

How do the ‘intended parents’ become the ‘legal parents’?

To legally become parents of the baby, couples have to apply to the High Court for a ‘parental order’.

“This transfers legal parenthood and parental responsibility from the surrogate (and her spouse/civil partner if relevant) to the intended parents,” says Dally.

There are several conditions that need to be met for the order to be granted including; it’s been made within six months of the birth (although usually the child will already be living with them), a least one of the couple is ‘domiciled’ in the UK, and both at least 18 years old.

The issue of payment will also be considered. The high court has to be satisfied that “the surrogate and any other legal parent of the child has given consent to the arrangement,” says Dally.

“The surrogate mother cannot give her consent until at least six weeks after the birth.”

Previously, parental orders could only be made by a couple, causing issues if they split up. But in January, a change in the law came into force allowing single parents to apply.

For legal advice on surrogacy visit