Part 17: The Legal Parts

When we offered surrogacy to Soph and Jack, we knew the legal system wouldn’t be plain sailing in the UK from our very limited knowledge on it all, but if there is someone who is going to do their research inside and out… it’s Soph!

S – After Em offered to be our surrogate, one of the first things we researched was the legal stance on surrogacy in the UK and it was pretty clear early on that the law is very outdated! It was made in the 1980s and has not changed since. It states that regardless of circumstance or genetics, the surrogate is the child’s legal mother on the initial birth certificate and if the surrogate is married then her husband automatically goes down as the child’s father.

This was obviously something we had to consider and discuss with Em and James from the start because a lot of it therefore really does come down to trust. We created our own  surrogacy agreement, one of the criteria the clinic needed, but that wouldn’t be legally binding if for some reason Em suddenly changed her mind and wanted to keep the baby (thankfully we have always been a million % sure this would never be the case!!!). Initially I did feel a bit odd about not going down as my own child’s mother but then we all decided that it was purely paperwork and something we just needed to get on with.

So here is a rough plan of events for when baby Smith arrives:

1. Register his birth. James will be joining Jack and I to do this as Em will be on bed rest after the section. We have to take a special form with us that Em has signed to say she is the ‘legal mother’ and James will go down as the ‘legal father’. I’ve been asked a few times if the baby therefore takes Em and James surname and the answer is no. Anyone can name their child anything they want regardless of the situation so our baby boys name will be the same as ours on the certificate.
2. Apply for a passport. Em and James will need to sign these forms as his ‘legal parents’ as we are travelling abroad a couple of times before any sort of court date will be set.
3. Apply for a parental order. This is the only way we can get legal rights as parents in the UK due to the surrogacy laws. We have to send a form off to our local family court and then we are given a specialist case worker (a fully qualified social worker). Our case worker will visit us and baby and go through our journey so far. They will also make sure Em and James are fully consenting to the parental order and that all criteria has been met, such as making sure the baby is genetically linked to us and that we have not paid Em more than reasonable expenses (travel, vitamins, maternity clothes, childcare help etc). This process can take 2-3 months. After this we will be given a final court date where we all attend and are (hopefully!) granted our parental order. This then extinguishes Em and James’ legal rights and Jack and I finally become legal parents to our baby. The original birth certificate is taken away and a new one issued. Voila!

Thankfully there was a government consultation period in 2019 and it is thought the law regarding surrogacy will be changing at some point in 2021.

All of the above does sound a little stressful considering we will be navigating our way through looking after a newborn at the same time b but I imagine there will be lots of celebrations the day our order is granted!

E: When we offered surrogacy to Soph and Jack, we knew the legal system wouldn’t be plain sailing in the UK from our very limited knowledge on it all, but if there is someone who is going to do their research inside and out… it’s Soph! The whole offer of helping them create a family has always been based on our love for and trust in these guys. We will love baby Smith as they love and have a hugely close bond with our kids, Mollie and Theo. Let’s hope it is a bit easier one day for those who haven’t got an A-class researcher like Soph! As it really needn’t be so complicated!