The column has received a great deal of feedback – some of it negative, much of it encouraging – and reflects the many questions we are asked as family lawyers about this complex subject.
There are a number of differing types of surrogacy now available, and UK law supports same-sex parents conceiving through surrogacy in the same way as it does different-sex couples.
There is what might be termed traditional surrogacy, when the surrogate provides her own eggs to achieve the pregnancy. The intended father, in either a heterosexual or male same-sex relationship, provides a sperm sample for conception, through either self-insemination at home or artificial insemination with the help of a fertility clinic. If either the surrogate or intended father has fertility issues, then embryos may be created in vitro and transferred into the uterus of the surrogate.
“The woman who gives birth to a child is always considered the legal mother in UK law, even when using a donated egg.”
Nicola McDaid, senior associate
Gestational surrogacy, when the surrogate doesn’t provide her own egg to achieve the pregnancy, is when embryos are created in vitro (the literal translation of which is “in glass”, in this case meaning outside their normal biological context), and transferred into the uterus of the surrogate, using the eggs of the intended mother, fertilised with sperm of the intended father or donor. Alternatively, it might involve the eggs of a donor, fertilised with the sperm of the intended father, where the intended mother cannot use her own eggs, or the intended parents are a same-sex male couple.
Your rights as a donor, a surrogate or an intended parent
Your rights differ depending on whether you are the donor, the surrogate, or the intended parent(s).
A typical situation is when a couple finds a surrogate, and all parties draw up, and agree to, a contract whereby the baby is placed in said couple’s care when s/he is born. However, there are certain issues of which you should be aware:
Surrogacy arrangements and contracts before/after birth are not legally binding in UK law, and do not transfer parental responsibility, which means that the surrogate (in effect the birth mother) remains the child’s legal mother until the court makes an order removing her parental status. The woman who gives birth to a child is always considered the legal mother in UK law, even when using a donated egg
Intended parents can make an application for a parental orderwhich reassigns parenthood fully and permanently, and extinguishes the legal status and responsibilities of the surrogate (and her husband or wife.) Same-sex parents have been able to apply for a parental order since 6 April 2010.
How do you become a child’s legal parent?
As outlined above, you can apply for a parental order; if you are applying with a partner, you must meet the following criteria ( although this can be subject to interpretation and without question is ripe for amendment):
one of you must be genetically related to the child – in other words, be the egg or the sperm donor
you must be married/civil partners/living as partners in an enduring family relationship
have the child living with you
reside permanently in either the UK, Channel Islands or Isle of Man
You must apply within six months of the child’s birth
If you are applying as a single person (enforced since 3 January 2019)
you must be genetically related to the child in other words, be the egg or sperm donor
have the child living with you
reside permanently in either the UK, Channel Islands or Isle of Man
You can apply for a child of any age if you apply before 4 July 2019. After that date, you must apply within six months of the child’s birth
Whichever the scenario, the court must be satisfied that you have freely, and with full understanding of what is involved, agreed unconditionally to the making of the Parental Order. What’s more, the court must be satisfied that no money or other benefit ( other than expenses responsibly incurred) has been given or received by either applicant(s), unless authorised by the court.
If neither you nor your partner are genetically related to the child, adoption is the only way you can become the child’s legal parent.
For many, the surrogacy journey can be full of potential pitfalls and it is important that you research the subject as fully as possible; we would certainly advise you consult a lawyer well-versed in the subject.
have any rights over how the child will be brought up
be asked to support the child financially
be named on the birth certificate
Bear in mind that if you use an unlicensed clinic to donate sperm, you will be the legal father of any child born from your donation, under UK law.
Some people, who consider the UK’s laws with regard to surrogacy to be restrictive, may seek help abroad. However, bringing a surrogate-born baby back into the UK is a legal minefield. You can read more about international surrogacy here.
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Welcome to McAlister Family Law - A Family and Children's Law Firm like No Other.
Each and every member of our award-winning team is a genuine specialist in family and child law.
As can be seen from our entries in the various respected legal directories, we employ some of the most highly ranked specialists in the country.
Managing partner Amanda McAlister is one of the very few family lawyers listed as an “eminent practitioner” in Chambers and Partners and other partners are listed as leading individuals in the Legal 500.
Many of our solicitors are members of the Law Society’s Advanced Children Panel (more than any other family law practice). And we do not sit on the fence: that is why our clients feel totally in control during what can be a highly emotional and difficult process.
McAlister Family Law is Beyond Group’s specialist Family and Children Law Practice. The Group established the specialist family law firm in 2017.
Amanda is one of the UK’s most experienced, and respected, family law practitioners.
As a divorcee, a mother and a step-parent, Amanda brings empathy and personal experience of the many stresses and strains that a marriage breakdown can cause.
Amanda has been awarded the prestigious status of Eminent Practitioner in the independent directory Chambers and Partners. She is also one of the handful of individuals in the North West singled out as a Leading Individual by the Legal 500 who has described her as “truly phenomenal” and a “leading light”.
She has a reputation as being warm and engaging but at the same time is known for being a fighter, someone who is fearless when pursuing her client’s interests. Amanda has expertise in all aspects of family law but specializes in divorce involving financial issues, particularly those with an international element, complex pension or trusts. She also represents parents and wide family members in disputes concerning arrangements for children.
Amanda has extensive knowledge of co-habitation disputes and advises on separation and pre and postnuptial agreements.
Fiona has specialised in family law for over 20 years.
She is an expert in dealing with divorces which involve businesses and is know for her commercial awareness. Clients praise her attention to detail and her calm approach. She is ranked as a “noted practitioner” by Chambers and Partners.
Whilst Fiona undertakes all areas of family law, she is particularly accomplished at dealing with divorce cases where there are substantial and complex assets.
She regularly advises business owners on how they can protect their assets by way of pre-nuptial or post nuptial agreements. She also gives expert guidance to those who are divorcing and are keen to avoid the divorce impacting their business.
Fiona regularly acts for parents where a financial claim is being made on behalf of their child, as well as advising on disputes regarding arrangements for children.
She is known for her calm, empathetic and thorough approach, which ensures that all issues are considered and then dealt with proactively.
Liz has specialised in divorce and family cases for over 30 years.
Liz sits as a Deputy District Judge, and has specialist knowledge of the Child Support System having also sat on the original Child Support Tribunal; she has an understanding of the avenues available to resolve issues for the unmarried who have to rely on civil law as well as the Child Maintenance Service to resolve their cases.
As a member of the International Academy of Family Lawyers, Liz is well placed to assist her clients who are residents abroad.
Liz is an accredited member of Resolution and a member of the Chartered Institute of Arbitrators through which she practices as a Family Law Arbitrator, a member of the Law Society Family Panel, an assessor for the Law Society Panel, a member of the International Academy of Family Lawyers, a speaker for MBL and sits as a Deputy District Judge. She also lectures to family practitioners on a number of topics.
Ruth is a highly experienced family lawyer of more than 25 years and a specialist in Children Law, both public and private.
She has been a member of the Law Society Children Panel for more than 20 years, is a Member of Resolution, Reunite and works closely with the Association of Lawyers for Children as a Member of their organisation, attending the executive committee meetings. She is also a representative on the Cheshire and Merseyside Family Justice Board, often arranging training courses for her fellow professionals.
Her work also encompasses divorce and financial matters, including complex company assets, pension and trusts. Ruth also works with teenagers in relation to deprivation of liberty/secure accommodation orders: having fostered children for many years, she has seen the other side of care proceedings and this experience allows her a deeper and more personal understanding of the issues inherent in such situations.
Paul is experienced in dealing with all aspects of relationship breakdowns, including divorce and finances, cohabitation, children matters and domestic abuse matters.
His friendly and positive manner provides comfort and reassurance to his clients. Paul has assisted many people who have served in the Armed Forces and as such is known as the go-to expert for all Family Law by many military and ex-military personnel.
Paul is a firm believer in putting children first in any case where a child or children are involved. Once Paul has discussed and agreed his clients’ objectives, Paul will work tirelessly for them to ensure the best possible outcome.
Melissa has a vast amount of experience in dealing with all aspects of family law, and in particular children matters.
Many of her cases are complex involving such matters as allegations of domestic abuse, allegations of harm, parental alienation. Melissa is highly experienced in conducting divorce, financial and children matter cases with international elements.
She is a member of Resolution and is committed to resolving family law issues in a constructive and positive manner.
Melissa is focused and has a calm approach to her cases. She puts her clients at ease and has their objectives at the forefront of her mind.
Anna graduated from Lancaster University with LLB Hons in Law in 2011.
During Anna’s time with McAlister Family Law, she has strengthened her extensive knowledge surrounding managing assets during unmarried couples, dissolving civil partnerships and urgent children applications. Anna has a great relationship with the Police Federation and attends monthly legal advice centres to assist officers and provide sound advice relating to divorce, protecting assets including police pensions together with other matters such as contact with children.
Anna believes that client care is of the utmost importance; she appreciates that every time a client or potential new client makes contact it is because they need help and guidance through very difficult and highly emotional times.
Calm and kind, her sympathetic but entirely pragmatic approach to situations where emotions are running high is much appreciated by her clients.
Experienced in all aspects of separation, Aaron has a comprehensive knowledge on divorce, matrimonial finances, children act matters and domestic abuse injunctions.
He has extensive knowledge of separating parties that are key workers, assisting members of the Police Force, the Armed Forces and the NHS, and his knowledge and familiarity with defined benefit pension schemes leaves him well placed to cut through technical jargon, explaining the facts and putting his clients at ease.
With a comprehensive knowledge of private children act proceedings, Aaron is well versed in all facets of private children applications ensuring that the needs of the children are what are considered first and foremost.
He has assisted many clients in securing much-needed protection from abusive ex-partners and family members, and is well-versed in applications for Non-Molestation orders to protect clients from intimidation and harassment, as well as applications for Occupation Orders addressing the right to occupy the dwelling home.
Heather graduated with First Class Honours in Law from the University of Leeds and gained her LPC from BPP Manchester.
She has worked on a wide variety of family law cases, including parental alienation, international divorce and child contact as well as regularly working on cases involving assets in excess of £1 million.
Heather has already forged a reputation for academic rigour, excellent communication skills and an empathetic approach.
Early in his career George chose to focus on Family Law, and has worked in various areas of that specialism, including private law children, and divorce and finances.
“I find family law incredibly rewarding: there is something special about picking someone up from a bad situation and helping them towards a good one,” he says.
Outside of work George has fundraised for many years for the Help for Heroes charity and has a genuine interest in working with military and police personnel, the latter because of close family ties to the Met. He is a keen rugby player, and is also a qualified referee.