Is surrogacy legal in Northern Ireland?

To mark National Surrogacy Week, our new blog looks at the legal situation surrounding surrogacy in Northern Ireland.

While surrogacy can be legally complex and emotionally charged, it is an increasingly necessary and common way for people to fulfil their wish to become parents. Each year, we witness an increase in the number of couples and individuals choosing the surrogacy route to parenthood in Northern Ireland. 

In this blog, we examine the legal situation regarding surrogacy, look at the things you need to consider before entering into a surrogacy arrangement, and explain how a lawyer can help you with your surrogacy journey.

What does the law have to say about surrogacy in Northern Ireland?

While surrogacy is certainly legal in Northern Ireland and elsewhere in the UK, it is important to note that there is no specific surrogacy legislation in place. In essence, this means that any arrangements entered into between the intended parents and the surrogate are not enforceable in law. 

You must also be aware that certain practices within the surrogacy process that are legal in other countries are illegal in Northern Ireland. For example, it is against the law for a third party (such as a solicitor) to take payment for negotiating a surrogacy contract. And, contrary to popular belief, it is also illegal to pay a surrogate mother for her services in the UK. 

This means that during what is called the parental order application – the process by which the intended parents become the child’s legal parents; more on this below – the court will need to authorise any payments made over and above the expenses the surrogate has reasonably incurred. There is no definition of reasonable expenses, which means the court must decide what is reasonable in each case. The court often takes quite a relaxed approach and there is a history of the High Court approving payments in international cases that more than covers expenses.

When might surrogacy be the right option for us?

There are a whole host of reasons why you might opt to go down the surrogacy route to parenthood. These include:

• Medical reasons that make it dangerous or impossible for you to conceive naturally, including recurrent pregnancy loss, absence or malformation of the womb, or repeated IVF implantation failures
• Health or genetic conditions: You might have a genetic defect, health condition or life-threatening illness that you don’t want to risk passing onto your child via direct pregnancy
• Same-sex couples: You may be in a same-sex relationship and wish to have your own family. Patrick and Jon Coyle made legal history in Northern Ireland in 2022 when they became the country’s first same-sex couple to become parents via surrogacy
• Wanting to be a sole parent: You may wish to experience parenthood but perhaps don’t have or want a partner involved

What do we need to consider when going down the surrogacy route?

As mentioned above, there is no specific surrogacy legislation in place. This means that neither you as the intended parents, nor the surrogate mother, have any legal certainty until the end of what is often an emotionally charged process, and there therefore needs to be a lot of trust on both sides.

One of the best ways to deal with the anxieties that both you and your surrogate mother may have is to draw up a surrogacy agreement. This formal document sets out the terms of your surrogacy arrangement and typically covers issues such as the surrogate’s medical expenses, the intended parents’ responsibilities during pregnancy, and their legal parentage after the child’s birth. 

Though not legally enforceable, by discussing the terms and conditions of the surrogacy arrangement, you can establish clear expectations and understandings. While it cannot guarantee your legal parentage, it can at least provide evidence of the intentions and understanding of everyone involved when the surrogacy arrangement was made, which can in turn help prevent disputes and misunderstandings during or after the surrogacy process.

You should also be aware that it takes up to six weeks for the intended parents to be registered as the child’s legal parents. This is done via a parental order, which is akin to an adoption order and permanently removes the legal parenthood of the surrogate and her spouse. Only once the parental order has been granted is the surrogacy process completed.

How can a lawyer help us navigate the surrogacy process?

If you are thinking of entering into a surrogacy agreement, you should get legal advice from a family law solicitor who specialises in this area. Surrogacy is a very complex process, so it is highly advisable to have the assistance of an experienced legal expert from day one to help you navigate the intricacies and difficulties. 

Your solicitor will help you on your surrogacy journey by guiding you through the legal process:

• legal issues that may arise during the surrogacy process
• drafting and reviewing the surrogacy agreement 
• the parental order process and how to apply
• the documentation and forms you need to prepare
• personal or financial information required

Are you considering surrogacy? The Wilson Nesbitt Family Law team is here to help you

Our expert team of family law solicitors is highly experienced in helping our clients with the surrogacy process. 

As the legal landscape for surrogacy in Northern Ireland evolves, couples and individuals need a qualified surrogacy lawyer who can help you navigate the legal and practical aspects of surrogacy, ensuring that all parties involved are protected.

Please contact our Family Law Partner Ciara Brolly and the team on 0800 840 1363 or make an enquiry.

FAQs

Can a surrogate mother keep the baby?

Due to the fact that there is no specific surrogacy legislation in place and surrogacy arrangements are therefore not legally binding, surrogate mothers can change their mind and keep the baby up until the point that the parental order is registered.

Is it legal to pay a surrogate mother?

While surrogacy is legal in the UK and Northern Ireland, it is illegal for this to be a commercial arrangement. This means that you cannot pay a surrogate mother to carry a baby for you.

Can I pay someone to find a surrogate mother for me?

It is against the law to advertise for a surrogate mother, as well as for a third party (such as a solicitor) to take payment for negotiating a surrogacy contract.

However, there are several non-profit organisations in the UK who can help you find a surrogate. The most well-known are Surrogacy UK, Brilliant Beginnings and COTS. It is also not uncommon for family members or friends to offer their help.

How long does surrogacy take?

Surrogacy can be a long and drawn-out process. It is important to have realistic expectations in terms of the time-frame involved, which is usually at least 18 to 24 months and take up to twice as long, depending on the individual circumstances.