For many individuals having their own family means everything. Sadly for some the path to achieve this dream is a challenging one. For couples or individuals seeking to become a parent Surrogacy can often be the route.

Intended parents can either be from a heterosexual relationship, same sex relationship or indeed a single parent. The key is for one intended parent to have a genetic link to the subject child.

There are two types of Surrogacy;

1. Full or Traditional Surrogacy- whereby the Surrogate provides her own eggs to achieve the pregnancy

2. Host Surrogacy- whereby embryos are created in vitro and transferred to the Surrogate

Surrogacy is legal in Northern Ireland however any arrangements entered into are not enforceable in Law. Surrogacy within the United Kingdom must be altruistic, although Commercial agreements can be entered into outside of the United Kingdom. It is therefore very important before embarking on such a journey that you are fully aware of the legal position. There are several Surrogacy agencies in the United Kingdom. It is strongly recommended that you seek the assistance of an agency to alleviate some of the risks associated with Surrogacy. These Agencies can also be a source of great information and support. Surrogacy is not without its risks. It is exceptionally important prior to embarking on this journey that full legal advice is obtained. Every Surrogacy journey is different and it is vitally important that specific legal advice is obtained relevant to that party’s journey.

Once a baby is born the legal parents are the Surrogate and her then husband or partner. This is quite an unusual concept for many people to understand as quite often the Surrogate will not have a genetic link to the baby and certainly their husband or partner will not. This will remain the position until a Parental Order is made by a Court.

The legal process is somewhat straightforward providing everyone is in agreement. The Intended Parents will make an application to the High Court for a Parental Order under the Human Fertilisation and Embryology Act 2008 no earlier than six weeks post birth and no later than the baby being six months old. If a Parental Order is not made in respect of the baby, the legal parents of the baby will still remain the Surrogate and husband/partner.

The Parental Order is akin to an Adoption Order albeit a more straight forward process specifically designed for families having children via surrogacy and that the once Intended Parents will not only be legally recognised as the baby’s parents now but with this Order a new birth certificate naming them will issue.

Applicants must satisfy the following criteria;

1. The couple must be married, civil partners, or in an enduring family relationship.

2. The couple must both be over 18 years old.

3. The couple must reside in the UK

All Parental Order applications must be lodged before the High Court in Belfast. The Court will appoint a Guardian ad Litem. The Guardian represents the baby and will meet with the Intended Parents before reporting back to the Court. The Court has to be satisfied of the baby’s wellbeing and health prior to the making of any Order. Once the Guardian has completed their work the case will be listed for hearing. This could take several months for this process to progress through the Court.

Until the granting of the Parental Order the Surrogate and their husband/ partner will be the sole holders of parental responsibility. Therefore their consent will be necessary for any medical treatment of the subject child if required. In some instances it may be necessary for the Intended Parents to apply to the Court for a Residence Order so that they hold parental responsibility prior to the granting of the Parental Order. Such an application would be made if the Surrogate lives far away from the Intended Parents and consent on an emergency basis would not be forthcoming promptly. Once the Court grants a Parental Order the Court will send a copy of the birth certificate to the General Register Office. The Office will then contact the now Parents via correspondence to advise that a new birth certificate can be obtained.

Surrogates in the United Kingdom cannot be paid for their service instead they will receive monies towards ‘reasonable expenses’. It is therefore vitally important that the Intended Parents keep a record of all expenses as the Court will undoubtedly seek to have same clarified.

For further legal advice surrounding Surrogacy in Northern Ireland please contact Naomi Devlin at [email protected] or 028 9181 1538/028 9043 4015.

The Family Law Department currently represent clients worldwide on all Family Law matters.