Surrogacy for non-biological parents

Is it legal to pursue surrogacy if I have no biological link with my child?

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 reluctant to treat you unless you can show you have a clear legal plan in place to resolve parenthood.

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 legal to pursue surrogacy with donated sperm and eggs (sometimes called double-donation) or donated embryos, and there are potentially alternative legal solutions available to the parental order (although you do need to get careful legal advice to make sure there is a way to resolve things for you).

We have dealt with a small number of non-biological surrogacy cases, helping parents to secure British nationality for their children and to secure their status as legal parents. 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. 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.

What are my options for resolving legal parenthood after surrogacy?

Parental order

A parental order is the legal solution designed for surrogacy, but it is not available to you if you have not provided the eggs or sperm to conceive your child (using a family member as a donor is not sufficient to meet the criteria). It’s unlikely this will change in the foreseeable future. The Law Commission made recommendations for law reform in 2023 which the government has said it has no time to take forward, but unfortunately those recommendations did not in any event include enabling non-biological parents to apply for parental orders. We continue to believe they should be included since we know that surrogacy without a biological link is happening and we think all children born through surrogacy should be securely recognised in the families they are born into.

Adoption order

An adoption order is the only other UK legal mechanism which fully and permanently reassigns legal parenthood, thereby extinguishing the parenthood of a surrogate as well as confirming the parenthood of the intended parent/s.

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 appropriately, 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 with very careful planning.

We successfully represented the parents in the two leading cases in which adoption orders have been granted to non-biological parents following US surrogacy arrangements.

In J v K (Adoption), Mrs Justice Theis granted an adoption order to a single mother who had conceived a little boy through surrogacy in the US.

In C & Anor v E (International Surrogacy and Domestic Adoption), Mr Justice MacDonald granted an adoption order to a couple in similar circumstances. He examined some of the broader legal issues in more depth, making clear that there was the potential to commit a criminal offence if you brought a child into the UK with a settled intention to adopt them, and saying that each application would need to be examined carefully on its particular facts.

While this remains a complex and emerging area of law, we are currently representing several other parents seeking adoption orders after international surrogacy, and hope that the adoption path for surrogacy will become clearer and more established over time.

Other court orders and legal documents

There are also other orders you can seek from the family court to regulate your parenthood and decision-making capability 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 is also sensible, and we can help with this too.

British nationality

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 for them to share your nationality.

A parental order or UK adoption order will make a child British automatically if the order is made in favour of a British citizen parent. However, there are often other ways to secure British nationality more quickly and straightforwardly in surrogacy cases. In particular, you may be able to obtain British nationality for your child via registration under the Home Office’s discretionary surrogacy policy. We have handled many of these applications for non-biological parents through surrogacy over many years, and can advise you on whether an application is likely to be granted in your case, as well as managing your application for you.

How we can help

We hope the law will change to recognise and make space for parents through non-biological surrogacy. In the meantime, we will continue to find creative solutions for parents wherever possible which navigate the law successfully and safely. 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. This remains a novel area of law and we can advise you on your legal strategy in the round and the options available to you, covering nationality and parenthood under one roof to help your family become fully legally secured.