Same-sex Parents and Surrogacy
Surrogacy is where a woman carries and gives birth to a child but does not intend to be the parent. Surrogacy is therefore often a popular route to parenthood for same-sex couples keen to have children using their own gametes.
The law regarding surrogacy is complex and there are many associated issues after the surrogacy not least regarding legal parentage and parental responsibility.
Commercial surrogacy is illegal in the UK as is the advertising for surrogate mothers and so it is sometimes difficult for prospective parents to find a willing surrogate mother. For gay men wishing to be a parent, the individual circumstances of the surrogate mother also make a difference as to who will be treated as the child’s father. Caution is advised to any prospective parent intending on embarking on a process of parenthood initiated by surrogacy.
In English law the surrogate mother is always the child’s legal mother and any agreement entered into between two same-sex fathers and the surrogate mother is actually unenforceable under the law in England and Wales. The method by which the law in England and Wales deals with this is by a Parental Order.
A Parental Order is a court order assigning legal parenthood to the two parents other than the surrogate mother, whilst terminating the legal parenting responsibilities of the surrogate mother. It will also enable the child’s birth certificate to be re-registered such to name the two same-sex parents as the child’s legal parents.
Lesbian couples wishing to become parents through surrogacy need to be aware of further potential difficulties concerning legal parentage following the birth of the child. The gestational mother will be the legal mother of the child and a Parental Order will only be available if one of the couple has provided the eggs.
The law regarding surrogacy, legal parentage and Parental Orders is developing rapidly and ground-breaking cases are coming before the courts on a monthly basis. It is wise and good practice to obtain legal advice well in advance of a planned surrogacy so that complications are avoided both pre and post-birth.