Yes. Although some fertility clinics and surrogacy organisations say surrogacy without a biological link is not permitted in the UK, what they actually mean is that it is not possible for you to apply for a parental order after your child is born (the post-birth court application in the UK to assign parental rights to you). In practice, this does not make it illegal for you to conceive a child through surrogacy without a biological connection, but UK fertility clinics may be nervous about supporting you unless you can show you have a clear legal plan in place.
In practice you may also find it difficult to find a surrogate in the UK willing to help you. UK surrogates looking for a match understandably prefer to work with parents who can apply for a parental order, and the UK’s main non-profit organisations will not as a matter of policy match UK surrogates with intended parents who are not eligible because the legalities are more complicated for them too.
However, if you can overcome the practical hurdles it is possible, and legal, to pursue surrogacy with donated sperm and eggs (sometimes called double- donation) or donated embryos, and there are alternative legal solutions available to the parental order. We have dealt with a number of non-biological surrogacy cases, helping parents to secure British nationality for their children and to secure their status as legal parents successfully so we know that it can be done. In general, intended parents who have made this work to date (often single mums but sometimes couples with fertility or medical issues) have either had a UK friend or family member willing to help them, or have conceived through an international surrogacy arrangement. In some countries (particularly the USA) where surrogacy is more commonplace, there is greater availability of surrogates and a clear legal process in place (without a need to be biologically related to your child) which makes non-biological surrogacy practically possible.
It is worth stressing that going overseas is a practical solution to finding a surrogate but it does not mean that you escape the UK legal complications entirely. If your child is born through surrogacy overseas, you may have an overseas birth certificate naming you as a parent already, but this will not secure your status in the UK (where the surrogate and her spouse, will be the legal parents) or give your child a right to British nationality.
Depending on the marital status of your surrogate and the circumstances of conception, you may be able to choose to nominate yourself as the second legal parent of your child if treatment takes places at a UK clinic regulated by the HFEA. With your surrogate’s agreement, you (as the non-biological intended father/mother) can in some circumstances be registered on the birth certificate with your surrogate meaning you will have joint legal parentage and share parental responsibility. It is imperative that the correct clinic forms are completed accurately, and before embryo takes place (at which point legal parentage is fixed). This is one way in which you can become a legal parent and, if applicable in your circumstances, it makes you a legal parent for UK law purposes immediately from birth.
The parental order is not currently available to you if you do not have a biological link with your child. Our lead in the campaign for UK surrogacy law reform has helped prompt the Law Commission to review the law on surrogacy, and we are actively campaigning for non-biological parents to be included in any law reform. We know that surrogacy without a biological link is happening and we think all children born through surrogacy should be securely recognised in the right families. We are hopeful the law will eventually include non-biological parents through surrogacy in a sensible way, although this is unlikely to be for some time. The Law Commission expects to produce a final report with recommendations for reform in 2022, but any proposals to change the law will follow and may take several more years.
Without the option of a parental order to extinguish your surrogate (and her husband’s) rights, you may need to apply to adopt your child (either in the UK or through a recognised overseas adoption order). An adoption order, like a parental order, changes who the parents are permanently and so extinguishes the parenthood of a surrogate as well as confirming the parenthood of the intended parent/s. The adoption order could be made in the UK or possibly overseas (since some overseas adoption orders are recognised in the UK automatically) but this needs carefully planning. There are very prescriptive adoption law rules to follow to make sure things are set up in the right way and great care needs to be taken to manage things correctly and to avoid committing any criminal offences, particularly where there is an international element. If you apply in England, you will need the involvement of your local authority and the UK family court, and the process will take some time. It all needs careful planning but can be done.
There are also other orders you can seek from the family court to regulate your parenthood in practical terms if you do not wish to apply for adoption or if you are not eligible. Putting in place wills to cover some of the gaps in the meantime is also sensible, and we can help with this too.
If you are not your child’s legal parent/s under UK law, he or she will not automatically inherit your British citizenship at birth. This means that, depending on your surrogate’s nationality, marital status and the circumstances of conception, your child may not be born British. Obviously this is very important to resolve if you want to raise your child in the UK, or to share your nationality.
You may be able to resolve this by applying for your child to be registered as a British Citizen through the Home Office’s discretionary surrogacy policy. We have handled many of these applications for non-biological parents through surrogacy, all successfully, and can advise you on whether an application is likely to be granted in your case, as well as managing your application for you.
We hope the law will change as part of the Law Commission’s reform and we will keep you updated with any changes. In the meantime we will continue to find creative solutions for parents wherever possible which navigate the law successfully. Surrogacy without a biological connection is legal, and possible, but how you resolve the legal issues needs careful planning given the facts of each particular case and often it is a jigsaw of solutions which all need to be fitted together. We can advise you on your legal strategy in the round, covering nationality and parenthood under one roof to help your family become fully legally secured.