If you are in a gay, lesbian or heterosexual relationship or you are a single person and want to raise a child whether through a private donor, a licensed clinic or by using a surrogate it is important to be clear about where you stand legally.
There are several different ways of creating your family through donor conception including using a fertility clinic to treat you with sperm or eggs from a registered donor, using a donor-matching website or conceiving with the help of someone you know (“known donation”).
In order to protect women who conceive with donated eggs or embryos the law states that the woman who gives birth is the legal mother. The law also protects fathers conceiving with donated sperm and states that they are the legal father even if they are not the biological father.
For lesbian couples starting a family through donor conception the non-birth mother will be the child’s other legal parent if she is married to, or in a civil partnership with the birth mother, or if a child is conceived at a UK fertility clinic after April 2009 and the relevant forms were completed at the time of seeking fertility treatment. If none of these circumstances apply then a non-birth mother would need to make an application for a parental order in order to become the child’s legal parent. Please see Parental Order below for a further explanation.
In relation to known donation the donor may be someone intending to share parenting with the birth mother (and her partner) or may be someone with no intention of having any ongoing involvement. If the donor intends to share parenting or co-parent it is important to ensure that you both have the same expectations and it is sensible to agree a pre-conception agreement.
Although a pre-conception agreement is not legally binding it will provide clear evidence of what was agreed before the child was conceived. It is also important to ensure that you know the legal status that the known donor will have in respect of child maintenance and inheritance claims as this is often an area of dispute when co-parenting agreements breakdown.
There are different types of surrogacy:
Traditional surrogacy where a surrogate donates her egg as well as carrying the child
Gestational surrogacy where you and your partner create embryos through IVF treatment and the surrogate carries the child. This can be using your own eggs or sperm or donor eggs and sperm.
At birth your surrogate is the child’s legal mother. Who is treated as your child’s second parent is complicated and depends on your surrogate’s relationship status and the biology of the child. In order to ensure the intended parents are the legal parents of the child an application for a parental order will need to be made to the Court. Please see Parental Order below.
Lesbian mums conceiving through surrogacy should be aware that you will only be able to apply for a parental order if one of you has provided the eggs. Please see Parental Order below.
Although surrogacy agreements are not legally binding in the UK it is sensible to set out the terms of the agreement so that everyone’s intentions are clear from the outset. It is important that both you and your surrogate trust each other to honour the agreement that you reach.
To learn more please see our pages on adoption.
The woman who gives birth is the child’s legal mother. If the legal mother is married or in a civil partnership her spouse or civil partner automatically becomes the child’s second parent. This can lead to complications where a birth mother is a surrogate as the surrogate and her spouse or civil partner will be the child’s legal parents and will be registered on the birth certificate.
If the surrogate is not married or in a civil partnership the intended father will be the second legal parent provided he is the biological father. This leaves the intended mother or non-biological father in a position where they are not a legal parent.
The way to resolve these difficulties and to ensure that the intended parents are the legal parents of the child is to make an application for a parental order. Once the order is made the birth will be re-registered and a new birth certificate will issued. The application must be made within 6 months of the birth and there are specific criteria that must be met. It is crucial that the carefully considered when entering into a surrogacy agreement or a pre-conception agreement.
Lesbian mums conceiving through surrogacy should be aware that you will only be able to apply for a parental order if one of you has provided the eggs.
Parental orders are only available to couples who are married, in a civil partnership or are living together. Single parents will not be able to apply for a parental order. This something which must be considered carefully when conceiving with a surrogate.
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