Surrogate Rights and Intended Parent Rights in UK Surrogacy

Understanding rights, responsibilities and consent in surrogacy arrangements

One of the biggest concerns for anyone involved in surrogacy is understanding where they stand legally.

Intended parents often worry about whether they will be recognised as their child’s parents. Surrogates may want reassurance about their rights, responsibilities and legal position throughout the process. These are sensible questions.

Surrogacy is built on trust, communication and shared expectations. Most journeys proceed smoothly, but it is important for everyone involved to understand how the law works and what protections exist if circumstances change.

At WSP, we help intended parents and surrogates understand their legal position in plain English, enabling them to move forward with confidence and clarity.

Important: WSP provides legal advice and representation. We do not arrange surrogacy arrangements, negotiate surrogacy terms or facilitate matches between intended parents and surrogates.

The Most Important Thing to Understand

Many people assume that the intended parents automatically have all legal rights from birth.

In England and Wales, the position is more complicated. The person who gives birth to the child is recognised as the child’s legal parent at birth. This means the surrogate has legal status from the moment the child is born, regardless of any biological connection the intended parents may have. If the surrogate is married, their spouse is also seen, in law, as the child’s legal parent at birth. This is true even if it has been a Gestational Surrogacy and neither of them have any biological connection to the child.

For most families, the legal position is then changed through a parental order made by the court.

Understanding this principle helps explain many of the legal rights and responsibilities that arise during the surrogacy process.

What Rights Do Intended Parents Have?

Before Pregnancy

Before pregnancy begins, intended parents can choose what type of surrogacy to use, where to arrange the surrogacy, which agency to use (if any), who the surrogate should be, the identity of any egg or sperm donor and what involvement they want their family to have with the surrogate during the pregnancy and after birth.

Intended parents also have the right to obtain legal advice about:

• The surrogacy process.
• Parental orders.
• Legal parenthood.
• Surrogacy agreements.
• International surrogacy arrangements.
• The likely court process after birth.

Many intended parents choose to seek advice early so they understand the legal framework before making important decisions.

During Pregnancy

Throughout the pregnancy, intended parents can take practical steps to prepare for the legal process after birth.

This may include:

• Gathering evidence for a future parental order application.
• Understanding court requirements.
• Preparing supporting documentation.
• Obtaining specialist advice where international elements are involved.
• Plus all of the exciting steps that any parent can take to prepare for the birth of their child.

Planning ahead often makes the parental order process simpler and less stressful later. That’s our aim at WSP: to help make the legal process less complicated so you can focus on preparing for the birth of your child.

After Birth

Following the child’s birth, intended parents are generally able to apply for a parental order if the relevant legal requirements are met.

A parental order allows the court to transfer legal parenthood to the intended parent or parents. This is an important legal step because it creates long-term certainty for both the child and the family.

To learn more, see our guide to Parental Orders Explained.

What Rights Does A Surrogate Have?

Surrogates play an extraordinary role in helping families grow. The law recognises that reality.

Because the surrogate gives birth to the child, they hold an important legal position at birth. This position exists regardless of what the surrogate and intended parents decide between themselves.

As a part of the court process, your surrogate will need to give formal consent to your child remaining with you. Consent has to be given freely and the surrogate must understand what they are agreeing to. Consent cannot be given until at least 6 weeks after birth.

Understandably, not being able to secure this during the pregnancy or in the first 6 weeks can make some intended parents anxious. For the vast majority of families, this will all go smoothly and parents can move onto the next step in securing their legal parenthood.

Where there are issues, our expert surrogacy lawyers can help you navigate this, whatever the problem. From helping you track down a surrogate who you can’t contact, to making applications in court to dispense with the need for consent, to considering alternatives to a Parental Order.

The Importance of Consent

Consent is a central part of surrogacy law. When the court considers a parental order application, it will want to be satisfied that the surrogate has given informed consent to the order being made. Consent cannot be given until at least 6 weeks after birth.

The court takes this issue seriously.

One reason a Cafcass Parental Order Reporter becomes involved is to help the court understand the circumstances and confirm that the necessary consent has been provided.

Can A Surrogate Change Their Mind?

This is one of the most frequently searched questions about surrogacy.

Although disputes are relatively uncommon, intended parents often want to understand what would happen if circumstances changed. The answer depends on the individual facts of the case.

Where disagreements arise, the court’s primary concern is not the wishes of the adults involved. Instead, the court focuses on one key question: What is in the child’s best interests?

The court can consider a wide range of factors when making decisions.

What Factors Can A Court Consider?

Every situation is different. The court considers all relevant circumstances rather than applying a one-size-fits-all approach.

The court could consider:

• Whether a surrogacy agreement exists.
• What everyone originally intended.
• Who the child’s biological parents are.
• Existing family relationships.
• The child’s welfare needs.
• The child’s race and cultural identity.
• Relationships with siblings.
• Any risks of harm.
• The child’s wishes, where age appropriate.

What Is Parental Responsibility?

Parental responsibility is the legal right and responsibility to make important decisions about a child’s upbringing. This covers every decision for a child. The smaller things like what they eat for dinner and the big decisions about their education, healthcare and welfare.

Parental responsibility and legal parenthood are closely connected but are not identical concepts. The correct legal position depends on the circumstances of each family and the stage they have reached in the surrogacy process.

Because this area of law is technical, personalised legal advice is invaluable.

Can We Record Our Wishes In Writing?

Yes. Although surrogacy agreements are not legally enforceable in England and Wales, they can still be extremely helpful.

A carefully prepared agreement can allow everyone involved to discuss:

• Expectations.
• Contact arrangements.
• Communication.
• Expenses.
• Pregnancy decisions.
• Plans after birth.

The courts may also consider the agreement as part of the wider picture if questions later arise. Most importantly, having these conversations early often helps build trust and avoid misunderstandings.

Rights In International Surrogacy Cases

International surrogacy arrangements can create additional questions about rights and legal parenthood. Different countries apply different laws. It is possible to be recognised as a parent in the country where a child is born, but you will still need to apply for a parental order after returning to England and Wales.

Questions frequently arise around:

• Passport applications.
• Nationality.
• Immigration.
• Overseas court orders.
• Domicile.
• Legal parenthood in the UK.

You can learn more in our guide to International Surrogacy and Returning to the UK.