Donor conception, surrogacy, adoption and co-parenting laws in the UK
The United Kingdom is probably one of the most progressive countries in the world regarding donor conception, surrogacy and same-sex parenthood rights.
Donor conception is regulated by the Human Fertilisation and Embryology Act (HFEA) of 2008, which grants equal access rights to artificial reproduction methods to everyone, regardless of their marital status or sexual orientation.
Same-sex couples may become legal parents through donor conception, surrogacy or adoption. And, even though the government encourages using UK-based services, overseas fertility treatments, surrogacy and adoption are also an option for UK residents, provided that they comply with UK standards and regulations.
Now, if a child can have two mums or two dads, having a third legal parent is still not possible. Co-parenting situations where three or more parents are involved can be partially recognised by obtaining parental responsibility for the partner(s) of the legal parent(s). The laws are very specific when it comes to parenthood and must be carefully reviewed before going into a co-parenting agreement (see our Co-parenting section).
The UK is also quite permissive regarding surrogacy compared to most other European countries, as altruistic surrogacy has been legally allowed since 1985. However, the Surrogacy Act has not been reviewed since then and many argue that it is time for an update.
The content provided below is purely informational and has been compiled based on internet-based public content. As such, it should not be considered a source for legal advice and it is advisable to consult with a UK family law specialist if you are considering becoming a parent through one of these alternative methods.
Donor Conception in the UK
Access to donor sperm and fertility treatments
Single women along with lesbian couples have access to fertility treatments in the UK, including IUI and IVF. A woman may use her own egg, or an egg donated by her partner in the case of lesbian couples who wish to do so.
The latest fertility guidelines issued in 2013 by the National Institute for Health Care and Excellence (NICE) indicate that all women, regardless of their marital status or sexual orientation, are eligible for fertility treatments. Artificial insemination is usually considered first, but IVF procedures can also be offered to single women and lesbian couples who have a proven history of infertility.
IVF funding may also be granted to same-sex couples under certain circumstances. The NICE guidelines provide a national framework for access conditions, but the NHS depends on local clinical commissioning groups which may apply stricter criteria. As such, depending on personal and geographical situation, single women and lesbian couples may have no choice but to turn to private clinics to get an IVF, where costs are not regulated by the HFEA. More information on funding conditions can be found on the HFEA website.
The HFEA also provides a useful search tool for clinics offering both private and NHS funded fertility treatments.
Legal status of egg, sperm and embryo donors
In the UK, donors who make an egg, sperm or embryo donation through the network of HFEA licensed fertility clinics are protected by the law, whether the donation is directed to a known person or not. Donors may not be considered as legal parents of any child born as a result of their donation and cannot be asked for any type of financial child support.
If the gamete donation happens outside the legal framework though, different parenthood rights may apply, and, depending on the circumstances, donors’ parental responsibility may be claimed (see the At-home insemination section). Any individual considering giving or getting an egg or sperm donation outside an HFEA licensed clinic is thus advised to speak with a law specialist before getting involved in a private agreement or resorting to an overseas donation or treatment.
Conditions to become a donor
The age limit for women to donate eggs is 36, while men can donate sperm until their 41st birthday (in some cases, centres may accept donations from men that have passed the age limit of 41). All donors undergo medical screening to ensure no disease or genetic defect is passed on to the child. If you are considering becoming a sperm donor, this flowchart from Lifecycle may help guide you in your decision process.
Donors are expected to share some personal information, like their marital status, physical characteristics, medical history and own personal description. But, most importantly, UK sperm, egg and embryos donors are required to provide identifying information, which will be made available to any child born of their donation when they reach 18 years of age, should they so wish. This specific law was passed in 2005 to protect the right of donor-conceived individuals to know about their genetic origins. Contrary to what some media might have claimed, the ban on anonymous gametes donations does not seem to have affected the number of sperm and egg donors in the UK.
Sperm and egg donors´ compensation
Gametes donations performed in HFEA licensed centres are altruistic and unpaid. Fertility clinics may offer compensation of up to £35 for sperm donations or gametes and embryos previously stored for the donor´s own treatment. For an egg donation, the compensation limit is £750, according to HFEA regulation.Some argue that these compensation levels are too low, and that the lack of British donors forces people considering fertility treatment and clinics to import sperm samples from abroad.
Getting sperm over the internet
Obtaining fresh or frozen sperm on the internet is allowed as long as the website is licensed by the HFEA, or has a valid third party agreement with a licensed fertility centre. Transferring sperm, eggs or embryos from abroad is also possible, as long as the donation meets with the conditions specified by the HFEA.
A private arrangement with a sperm donor met online can also be considered, but it is highly advisable to consult with a specialist in family law before embarking on the process, in order to fully understand the donor´s and intended parents’ rights. It is important to understand that, when a donor conception takes place outside a licensed clinic, the donor is considered to be the biological father, and as such may claim legal fatherhood of the child born out of his donation.
As UK fertility clinics allow sperm donations from known donors, they provide full medical service and a legal framework protecting the rights of all intended parties, even in cases where the donor was found on the internet. In this case, both the donation and the insemination procedure must be performed at a fertility centre for the HFEA parental laws to apply.
In the UK, at-home insemination is not illegal, although the HFEA strongly advises against, stressing the implied risks, such as lack of medical screening, or possible legal parenthood issues after the birth of the child.
Yet some women find getting pregnant to be their best option, either because of the high costs or the long delays experienced when trying to get treatment at a licensed clinic or because they want to avoid repeated invasive medical procedures. In this case, the determination of parental rights does not fall under the Human Fertilisation and Embryology Act and the sperm donor counts as the father. If he and the mother agree, he may relinquish his rights as a father so that the mother´s partner can adopt the child. Or he may want to remain the legal father and play a significant role in the child´s up-bringing. Issues may arise in cases where the sperm donor and the mother disagree. In this case, the donor is legally considered to be the biological father, and resulting parental responsibility will apply, such as child visitation rights or child financial support duties, among others.Contacting an alternative family law specialist is the best way to enquire about one's own parental rights before going into a private donor agreement via self-insemination.
Fertility treatments abroad
It is not rare for British couples to look for fertility treatment options abroad, especially when a sperm or egg donation is involved. In this case, it is important to be aware that the HFEA has no competence over the procedure, and intended parents must do the research by themselves in order to fully understand the safety guidelines and local regulations that apply.
Available donor information, for instance, may vary greatly from one country to another. Whereas the UK rules against donor´s anonymity and allows all donor-conceived children born after 2005 to access their biological parent´s identifying information at the age of 18, some countries, like France, only permit anonymous donations, and others, such as Belgium, allow both types.
This type of consideration, as well as other factors like the limit of donations allowed by donor, safety regulations and inspection standards, parental rights and financial aspects must be well studied before taking the decision to get a fertility treatment overseas. The Infertility Network UK (INUK) offers guidance and a factsheet of useful considerations for people contemplating treatment abroad.
Surrogacy in the UK
Altruistic surrogacy in the UK
Surrogacy is allowed in the UK, and has been regulated since 1985 by the Surrogacy Arrangements Act. Gestational agreements are permitted as long as they are done on a non-commercial basis, although fair compensation of the costs incurred by the surrogate are authorized. However, surrogacy arrangements are not enforceable by law, meaning that the surrogate mother is considered the legal parent of the child until parental rights are being legally transferred over to the intended parents. In other words, if a surrogate mother changes her mind during the pregnancy and wants to keep the baby, the court will most probably rule in her favour.
Same-sex and different-sex couples have the same rights, and both partners may obtain legal parenthood of a surrogate offspring, provided that at least one of them is the biological father or mother of the child, as per the HFEA Act of 2008 (Section 54). However, this prerequisite closes the doors to couples needing both a sperm and an egg donation. The law also stipulates that the application for a parental order in the case of a surrogacy has to be made by a couple, making it almost impossible for a single person to become the parent of a surrogate child.
Those two aspects and some others are being criticized by law and surrogacy specialists, including the Surrogacy UK organization, who believe that the Surrogacy Arrangement Act, which dates back to 1985, should be revised and updated to better respond to today´s circumstances. The full report on the Surrogacy Law Reform Project is available on the University of Kent´s website.
Commercial surrogacy in the UK
Payments exceeding what can be considered fair compensation for a surrogacy are considered unlawful and can prevent the parental order being issued to the intended parents. That said, no monetary cap is specified in the Surrogacy Act, and the best interest of the child always takes precedence over the transgression of the law. To date, there has been no known case where the court would have ruled against the validation of a parental order because of the surrogate being overpaid.
What is considered as a criminal offence, though, is for third-party agencies to receive money for making surrogacy arrangements, as well as to advertise any type of surrogacy services, as specified in the Surrogacy Arrangement Act 1985.
Seeking a surrogate mother abroad is an option for couples residing in the UK. Yet, it is highly recommended to consult a solicitor before getting involved in a surrogacy arrangement overseas, as laws surrounding surrogacy and fertility treatments vary from one country to another. It is also important to know that parental orders are only issued once the child is on UK territory, requiring to get him or her a visa to enter the UK in the first place.
A good starting point for individuals who are contemplating a surrogacy overseas is to read the online guide made available to them by the Foreign and Commonwealth Office (FCO).
Adoption in the UK
Access to domestic adoption
Adoption in the UK is regulated by the Adoption and Children Act 2002 and is open to couples as well as to single persons aged 21 and over, regardless of their sexual orientation. Since the reviewed Equality Act was passed in 2006, discrimination against LGBT people during an adoption process is considered illegal.For more information on adoptions in the UK, you can consult the Government´s online section on child adoption or specialized support groups for LGBT adoptions like Stonewall and New Family Social.
International Adoption process
Intercountry adoption may be a complicated and lengthy process as it involves other sets of regulations apart from the UK Adoption and Children Act, such as international conventions (97 countries to this date, including the UK, are members of the Hague Convention on Intercountry Adoption) and local laws (many countries do not accept adoption requests from same-sex couples for instance).The number of UK intercountry adoptions is particularly low, especially when compared to most EU countries, mainly due to the lack of support and resources made available to intended adoptive parents it seems. The Gov.uk website itself provides few details on international adoption and redirects the search towards local councils and voluntary adoption agencies. One of them, the IAC – Centre for Adoption, an adoption support agency, does offer an advice line dedicated to people interested in adopting overseas.
Same-sex parenthood and co-parenting in the UK
Assisted conception and parenthood rights
In the UK, the woman giving birth to a child is automatically considered as his or her legal mother, even if she has signed a surrogacy agreement or wants to give the baby to adoption. And if she is married or in a civil partnership, her husband, wife or partner will be considered as the other legal parent.
When a woman who gave birth wants to give the child to adoption, she (and her partner if she is married or in a civil partnership) must relinquish her (their) parental rights and the intended parents must file a parental order application for a new birth certificate to be issued with their names, once approved by the court. Parental orders can only be filed by two persons jointly, not by one individual only.
If the mother is not married, she may designate a second person to be registered on the birth certificate as the second legal parent. This person may be her partner or the sperm donor, depending on her situation and the wish of the involved parties. Here, the law may differ depending on how the child was conceived, if at-home or in a HFEA-regulated clinic. For more information, the HFEA has a leaflet specifically intended for people who plan on conceiving through a sperm or egg donation without being married or in a civil partnership
Two people involved in a same-sex relationship can obtain full parental rights in the UK, provided that they meet certain legal requirements, which vary depending on their marital status and on how the child was conceived.
The first legal step towards the full recognition of LGBT parenting was taken when the amended Adoption and Children Act was passed in 2002, allowing gay and lesbian couples to adopt. But lesbian couples who had going through donor conception had to wait until 2009 to be both recognized as legal mothers, when the second part of the HFEA Act 2008 on parenthood came into force. Parental orders were then opened to same-sex couples in 2010 (phase 3 of the HFEA Act), allowing gay dads (or moms) to become the legal parents of a child born out of a surrogacy arrangement.
Nowadays, legal recognition of the same-sex partner as a parent is automatic only in certain situations. It is the case when two women, married or in a civil partnership, conceive artificially using a sperm donation. If the birth mother and her partner are not married or in a civil partnership, the second parent can either be the donor or the mother´s partner. In other cases, for instance surrogacy, the rights of the biological parents must be transferred over to the intended parents by filing an application for a parental order (this application can only be filled out by two persons jointly).
Adopting a stepchild is possible for anyone who is in a stable relationship with the natural parent of the child, whether married or not. The applicant must provide evidence that they have been living as a family for at least 6 months. The procedure is the same for all parents, regardless of their sexual orientation.
By adopting his stepchild, the step-parent fully becomes his second legal parent, meaning that the previous other legal parent will lose all parental rights and duties towards the child. As such, it is a critical decision for the whole family that needs to be carefully considered. A less drastic solution consists in applying for parental responsibility, which grants parental rights to the partner of one of the legal parents, without cutting the child of from his other parent. Read more on what implications are of adopting a stepchild on FamilyLives.org.
A child cannot have more than two legal parents in the UK. Yet limited parental rights can be granted to other people involved in the child´s upbringing. A man and a woman who are not involved in a relationship may decide to have a child together and in a co-parenting configuration involving both their partners, or the partner of only one of them. From the beginning, all intended parents involved should decide who will be named on the birth certificate as legal parents (options are limited by the law though) and who will have to apply for parental responsibility.
The law defining who the legal parents are in the case of an intended co-parenting arrangement can be tricky, as they depend on the marital status of the mother as well as on the manner in which the child was conceived. Therefore, it is always advisable to establish a co-parenting agreement between the parties, which, although not considered as a binding contract by the law, may help solve possible future issues.
For more detailed information and advice on co-parenting, you may want to consult these two pages:
- Co-parenting: Fertility laws and co-parenting options / Stonewall.org.uk
- Co-parenting / Alternative Family Law Gay and Lesbians