Guidance

Information for foreign agencies: United Kingdom law on surrogacy

Updated 9 December 2022

Please note that the information in this guide has been simplified for ease of understanding, and some technicalities have not been discussed in detail.

This information is correct at the time of publication.

You should seek professional legal advice from a specialist lawyer in the United Kingdom.

Key considerations

• United Kingdom law will not recognise the legal parenthood of both intended parents at birth, even if this has been registered on the birth certificate or confirmed by court order in the jurisdiction of the child’s birth

  • the woman who gave birth will always be regarded as the legal mother of the child by United Kingdom law
  • the position of the legal father depends on several factors (read 2.2 below)

• for both intended parents to become legal parents, a court order (called ‘Parental Order’) in the United Kingdom is required

• these court orders have many legal requirements (read 5 below), but two of the key requirements are:

  • that the surrogate (and her husband, if relevant) must consent to the transfer of legal parenthood on a specific form (Form A101A) not earlier than six weeks after the birth, and that this consent must be confirmed later in the court proceedings
  • that at least one of the parents has a genetic relationship with the child. Otherwise the intended parents cannot become parents through a surrogacy arrangement under United Kingdom law

• these court orders can only be made in the United Kingdom when the child is living there with the intended parents. The child needs to travel with the intended parents to the United Kingdom, which means that they must acquire the necessary travel documents for the child (on which see 4 below). This may require a determination on whether the child has British nationality (read 3 below).

• it is essential that surrogacy agencies provide the necessary support and documentation for the intended parents to be able to obtain/claim British nationality, and to apply for travel documents and the court order for their child. An overview of the documents and information needed can be found at the end of this information document.

1. United Kingdom law on surrogacy in brief

The key statutes on surrogacy in the United Kingdom are the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008.

1.1. Commercial surrogacy

It is a criminal offence for surrogacy agencies to negotiate the terms of a surrogacy agreement on a commercial basis in the United Kingdom (UK). However, this does not apply to agencies when operating outside of the United Kingdom.

1.2. Non-enforceability of surrogacy contracts

Surrogacy contracts are not enforceable under United Kingdom law. This means that the intended parents cannot require the surrogate to transfer care of the child, nor can the surrogate pursue the intended parents for any money promised (or enforce any other clause) in the surrogacy contract in the United Kingdom. As surrogacy arrangements are not enforceable under United Kingdom law, the Foreign, Commonwealth and Development Office (FCDO) is not able to assist in enforcing these.

However, intended parent(s) must also bear in mind that surrogacy arrangements may be enforceable in the country in which they have undertaken the surrogacy and they may be subject to the laws of that country. Intended parent(s) should seek legal advice on this issue.

1.3. Application of United Kingdom law

In the United Kingdom, it is only United Kingdom law that determines who the parents of a child are. This means that neither birth certificates nor court orders from a foreign country will have any direct legal effect in determining legal parenthood in the United Kingdom. The intended parents must apply for a court order (called ‘Parental Order’) in the United Kingdom to become the legal parents. This will be explained in greater detail at 5 below.

2. Legal parenthood at birth

Under United Kingdom law, being named as a parent on a birth certificate from another jurisdiction does not always mean that this person will be the legal parent. The United Kingdom will always apply its own law on parenthood, no matter where in the world the surrogacy took place, or which nationality those involved in the arrangement have.

2.1. Legal mother of the child

Under United Kingdom law, the legal mother of a child at birth is always the person who gives birth, irrespective of whose genetic material has been used. Therefore, the surrogate will always be the legal mother at the time of birth. This means that the surrogate only loses legal parenthood if it is removed by a court order in the United Kingdom. It is typically transferred to the intended parent(s) through a Parental Order (on which see 5 below) or adoption.

2.2. Legal father of the child

The situation of the legal father is more complicated and depends on the marital status of the surrogate:

2.2.1. Married surrogate

If the surrogate is married to a man, then under the law of the United Kingdom her husband will also be a legal parent of the child. This will be the case no matter whose genetic material has been used in the surrogacy arrangement. Birth certificates or court orders from foreign jurisdictions naming the intended parents as the legal parents of the child are not recognised under United Kingdom law which will still regard the surrogate and her husband as the legal parents. This means that parenthood will have to be transferred by a court order in the United Kingdom (on which see 5 below).

2.2.2. Unmarried surrogate

If the surrogate is not married to a man at the time of birth, the intended father will be considered the legal father under United Kingdom law, provided that his sperm has been used to create the child. A court order will still be needed to remove legal parenthood from the surrogate, and (where appropriate) to make the other intended parent the legal parent of the child (on which see 5 below).

2.3. Single women or second female parents of the child

When the only intended parent is a single female, she will not be regarded by United Kingdom law as the legal parent from birth, irrespective of whether her genetic material is used or not. Where both intended parents are female, neither of them will be regarded by United Kingdom law as legal parents from birth, irrespective of whether the genetic material of one of them was used or not.

Required documents for transferring legal parenthood:

• birth certificate for the child
• documentation of the marital status of the surrogate (either marriage certificate, divorce certificate or an express written declaration by the surrogate that she was unmarried at the time of birth)
• proof that the intended father’s sperm was used

3. The child’s nationality

The child’s nationality will depend on legal parenthood at birth (on which see 2 above).

3.1. Automatic citizenship: unmarried surrogate, where the British intended father’s sperm has been used

Where the surrogate is not married to a man, then the intended father is the legal father from birth if his sperm has been used in the surrogacy arrangement (for example evidenced by a DNA test, or by his registration on the birth certificate). In this case, as long as the intended father is a British citizen (otherwise than by descent), ^{[footnote 1]} the child will be regarded as a British citizen from birth and can be issued with British travel documents.

Required documents:

• birth certificate for the child
• express written declaration by the surrogate that she was not married to a man at the time of birth (or documents regarding a divorce, where relevant), which should be translated and notarised
• proof that the intended father’s sperm was used

3.2. Citizenship by registration: married surrogate, non-British intended father or where the sperm of intended father was not used

Where the surrogate is married to a man, her husband will be considered the legal father by United Kingdom law. In such cases, the child does not acquire British citizenship automatically from birth via the intended father.

Likewise, the child will not be recognised automatically as a British citizen at birth where the sperm of the British intended father was not used in the surrogacy arrangement (even if the surrogate is unmarried), or where it is the intended mother, rather than the intended father, who has British nationality.

While citizenship is not automatic in these cases, the child can still be recognised as a British citizen by virtue of the surrogacy arrangement itself. To achieve this, the intended parents will need to “register” the child as a British citizen with United Kingdom Visas and Immigration (UKVI) using Form MN1 (PDF, 834 KB). This registration must be done before any travel documents (such as passports) can be applied for.

This registration is at the discretion of the British authorities under the British Nationality Act 1981 section 3(1). ).Nevertheless, the process can take some months. This inevitably delays proceedings as travel documents can only be applied for after “registration”, and intended parents should be prepared to stay longer in the country where the child is born until all documents have been received and they can travel home.

Required documents for citizenship by registration:

• birth certificate for the child
• the surrogacy agreement signed by all parties
• marriage certificate of the surrogate, where applicable
• proof that the intended father’s sperm was used, where applicable
• a completed Form MN1 (PDF, 834 KB)
• consent to the registration from all parties – commissioning parents, surrogate mother, surrogate mother spouse
• referee declarations

More information on nationality in cases of surrogacy see Nationality Policy, Surrogacy (PDF, 88.5 KB).

4. Travel documents

For children to be able to travel to the United Kingdom with the intended parents, they need either:

• a United Kingdom passport, or
• entry clearance for the United Kingdom

Acquiring either of these can take several months, and the intended parents must be prepared to stay for that time with the child in the country where the surrogacy took place. They should be advised accordingly by surrogacy agencies and clinics and should be supported in making preparations for their stay.

In a crisis situation the Foreign, Commonwealth and Development Office (FCDO) will work with HM Passport Office (HMPO) to support intended parents and surrogate children as far as possible.

Intended parents should note that it is their responsibility to make sure they have a valid passport and the correct visa for their stay in another country. If they experience difficulties entering a country (for example, if they do not have a visa or their passport is not valid) Foreign, Commonwealth and Development Office (FCDO) consular staff will not be able to help them enter that country.

4.1. When the child is a British national by descent

If the child is a British citizen by descent (see above 3.1) – either automatically, or through registration – the intended parents need to apply for a United Kingdom passport for the child.

Required documents:

• all documents required for proof of British nationality (see 3 above)
• a letter from the surrogacy agency confirming that the child is the result of a surrogacy agreement, the details of the surrogacy agreement and evidence of the surrogacy treatment
• a document signed by the surrogate (and her husband, if relevant) that she consents to the intended parents applying for a passport and travelling with the child. Importantly, this document is separate from the consent to the parental order (on which see 5 below). It needs to be translated and notarised.

4.2. When the child is NOT a British national by descent

If the child is not a British national by birth, then the intended parents will need to apply for an entry clearance visa into the United Kingdom for the child.

This is granted on a discretionary basis, “outside the Immigration Rules”. The intended parents should be advised to seek specialist legal advice in the United Kingdom on the most appropriate process for bringing the child to the United Kingdom.

Required documents:

• a letter from the surrogacy agency confirming that the child is the result of a surrogacy agreement, the details of the surrogacy agreement and evidence of the surrogacy treatment
• a document signed by the surrogate (and her husband, if relevant) that she consents to the intended parents applying for the entry clearance visa and travelling with the child. Importantly, this document is separate from the consent to the parental order (on which see 5below). It needs to be translated and notarised.
• proof of a genetic relationship between the child and at least one of the intended parents.
• confirmation that the intended parents will apply for a Parental Order from the courts in the United Kingdom when they return to the United Kingdom (on which see 5 below)

For further information see Intercountry Surrogacy and the Immigration Rules.

5. Court orders for recognition of legal parenthood in the United Kingdom (Parental Orders)

In order to have their parenthood recognised under United Kingdom law (and to remove the legal parenthood of the surrogate and, where relevant, her husband), the intended parents must obtain a court order in the United Kingdom.

These court orders are called “Parental Orders”. If a Parental Order is not available, intended parent(s) may seek an adoption order.

For a Parental Order, a number of conditions must be met. It is of vital importance that agencies dealing with British intended parents are aware of these conditions and provide all the documentation necessary to meet them. If the conditions are not met, the intended parents may not be recognised under United Kingdom law as the legal parents of the child, and may run into substantial difficulties upon their return to the United Kingdom.

5.1. Applications can be made by couples or individual intended parents

Intended parent(s) can apply for a Parental Order individually, or as a couple. They do not have to be married; they can also be in a civil partnership or “in an enduring family relationship” (meaning a stable relationship as a couple). However, they cannot be within the prohibited degree of relationships – meaning that they cannot, for example, be brother and sister, mother and child, etc.

Under United Kingdom law, marriage and civil partnership are open for both opposite-sex and same-sex couples. Therefore, Parental Orders can be made in favour of both opposite-sex and same-sex couples. The sexual orientation of the intended parents is not relevant to the making of the order in the United Kingdom.

5.2. Genetic relationship

In order for a United Kingdom Court to make a Parental Order, there must be a genetic relationship between the child and at least one of the intended parents. If there is only one intended parent, there must be a genetic relationship between that person and the child.

This is of vital importance. Without this genetic relationship with one or both of the intended parents, they cannot be recognised as legal parents under a Parental Order, and will instead need to seek parenthood via an alternative route (eg. adoption).

Required documents:

• proof of the genetic relationship between the child and the intended parent(s)

5.3. Age criteria

Intended parent(s) must be over the age of 18 at the time of making the Parental Order.

5.4. Timing of application

The intended parent(s) must apply for the Parental Order within six months of the child’s birth. Having said this, the courts have taken a lenient approach to this issue, and have not viewed a late application is not an absolute bar to making an order.

5.5. Domicile in the United Kingdom

To obtain a Parental Order, either or both the intended parent(s) must be domiciled in the United Kingdom at the time of making the application, and at the time of making the Court order.

Domicile is a difficult legal concept, which relates to where the intended parent(s) have their permanent home. It is different from the place of habitual residence, and does not necessarily correspond to citizenship. Intended parents should seek legal advice if they are unsure of their country of domicile.

5.6. Consent to the Parental Order

In order to make a Parental Order, the Court must be satisfied that the surrogate (and her husband, if relevant), has freely, and with full understanding of what is involved, agreed unconditionally to the making of the order, and for the intended parents to become legal parents of the child.

The surrogate’s consent must be given more than six weeks after the child’s birth. Consent given before that time will not be valid. The consent of the surrogate (and her husband, if relevant) should be confirmed by using Form A101A.

Required documents:

• consent of the surrogate (and her husband, if relevant) to the parental order using Form A101A. The surrogate’s consent must be given more than six weeks after given birth to be valid. All these documents need to be notarised and translated into English.

The United Kingdom court will need to send to the surrogate (and her husband, if relevant) all papers of the court proceedings transferring parenthood. Therefore the intended parents must give notice to the surrogate (and her husband, if relevant) of the application for the Parental Order. This should be confirmed by completion of Form C52.

Later the court will have to send the court papers directly to the surrogate (and her husband, if relevant); there is no need to participate in the court proceedings, but there must be an acknowledgement that the papers have been received and a confirmation that she (and her husband, if relevant) do not wish to participate in the court proceedings or challenge the transfer of parenthood to the intended parents.

Required documents:

• as the court papers need to be served to the surrogate (and her husband, if relevant), the surrogate must be directly contactable throughout the duration of the court process. For this purpose, the intended parents must be given the home address of the surrogate (and her husband, if relevant). It is not enough to provide the address of the surrogacy agency: all these papers must be received directly by the surrogate (and her husband, if relevant) and replied to by them, every time. A failure to do so may mean that the intended parents are not able to gain recognition of their legal parenthood in the United Kingdom.

5.7. Payments

United Kingdom law does not permit surrogacy agencies to work within the United Kingdom on a commercial basis. However, this does not make such commercial arrangements in other countries illegal.

In order to transfer parenthood to the intended parents through a Parental Order, the court will be required to authorise any money that has been given or received in relation to the arrangement, the transfer of the child to the intended parents, or the making of the Parental Order. The courts have consistently approved payments made to foreign surrogates and surrogacy agencies.

For this authorisation to occur, however, all payments made to the surrogate and the surrogacy agency must be documented in detail and presented to the court. Surrogacy agencies therefore must provide intended parents with a complete, itemised and detailed invoice or list of payments, which sets out the various sums that have been paid in relation to the surrogacy arrangement, especially all those received by the surrogate. This should include medical expenses and all other expenses and payments.

Required documents:

• the surrogacy agreement, signed by all parties
• a complete, itemised and detailed invoice or list of payments of all sums that have been paid/need to be paid in relation to the surrogacy agreement

6. Links to legislation and United Kingdom government guidance

Legislation:

Surrogacy Arrangements Act 1985

Human Fertilisation and Embryology Act 2008

United Kingdom government guidance:

Nationality Policy, Surrogacy

Intercountry Surrogacy and the Immigration Rules

Practical Information for Intended Parents

7. Overview of the documentation that intended parents will need

This is a summary of the documents that the intended parents will need, to ensure that the child can obtain British citizenship, travel documents to return to the United Kingdom and so that the intended parents can become the legal parents of the child in the United Kingdom. Several of these documents will need to be notarised and translated.

• the surrogacy agreement, signed by all parties
• evidence of the surrogacy treatment, such as a letter from the clinic where it took place
• medical evidence relevant to the surrogacy, including the type of fertility treatment that has been provided, and details concerning the gametes used
• birth certificate for the child (and any court orders issued in the country where the surrogacy procedure and/or birth took place, if relevant)
• documentation confirming the identity of the surrogate (notarised and translated)
• evidence regarding the marital status of the surrogate (e.g. marriage certificate; divorce certificate; express statement of the surrogate that she was unmarried at the time of birth)
• any pre or post birth court orders issued in the country where the surrogacy procedure and/or birth took place
• if the child is not automatically a British citizen from birth, a completed Form MN1 (PDF, 834 KB) to “register” the child with United Kingdom Immigration and Visas (UKVI)
• a document signed by the surrogate (and her husband, if relevant) confirming that she consents to the intended parents applying for a passport/travel documents and travelling with the child. This document is separate from the consent to the parental order and needs to be notarised and translated.
• consent of the surrogate (and her husband, if relevant) to the parental order using Form A101A. The surrogate’s consent must be given more than six weeks after the birth of the child to be valid. These documents need to be notarised and translated.
• the home address of the surrogate (and her husband, if relevant) to which papers can be served by the court in the proceedings to transfer parenthood, so that they can acknowledge that they have received the papers but do not wish to participate in the court proceedings or challenge the transfer of legal parenthood to the intended parents.

Disclaimer

This information document has been produced as a general overview to surrogacy in the United Kingdom. Some of the information has been simplified for ease of understanding, and some technicalities have not been discussed in detail. The information does not address the specific requirements of individual cases and is provided for informational purposes only.

The information does not in any way constitute legal advice and should not be relied on or treated as a substitute for specific advice relevant to the particular circumstances of a case. We recommend that appropriate legal advice is taken from a qualified lawyer before taking, or refraining from taking, any action in a case.

The Foreign, Commonwealth and Development Office and Cambridge Family Law accept no responsibility for any errors, omissions or misleading statements in this document, nor for any loss which may arise from reliance on the information provided.

The document contains hyperlinks to further information sources on external or third party internet sites. For the avoidance of doubt, the Foreign, Commonwealth and Development Office is not responsible for the content, safety or security of any external or third party internet site.

1. A ‘British citizen by descent’ is a person born outside the United Kingdom whose British nationality was acquired because one or both of their parents was a British citizen. In contrast, generally speaking, a ‘British citizen otherwise than by descent’ is a British citizen who was born, adopted, naturalised or, in most cases, registered in the United Kingdom or a qualifying territory. While a ‘British citizen otherwise than by descent’ is someone who can pass their citizenship onto a child born overseas, a ‘British citizen by descent’ cannot automatically pass on British citizenship to any child of theirs who is born abroad. ↩