Surrogacy - what are your rights and options?

16 September 2019

Using a surrogate is becoming a more common way of having children and is a great option for people who are unable to do so themselves. However, it’s possible for disputes to arise and people involved in surrogate arrangements should be aware of their rights and options.

Examples of surrogacy disputes are:

  • The surrogate making decisions about the pregnancy, which the intended parents disagree with

  • The surrogate refusing to give the child to the intended parents

  • Intended parents withdrawing support from the surrogate

A common question asked by people in surrogate situations is whether they can enter into a contract to ensure that the surrogate carries the child appropriately and then gives up the child after birth. The simple answer is, although surrogacy is legal, no contract can be enforced under section 14 of the Human Assisted Reproductive Technology Act 2004. It is illegal for people to pay for surrogate services, other than paying reasonable expenses.

Under the Status of Children Act 1969, the person carrying the child and her partner (if any) are automatically legal parents of the child. The intended parents and any sperm/egg donors do not have any legal parenting rights.  The process of using a surrogate to have a child can be daunting for intended parents as they cannot enforce any surrogacy arrangements.

If there is a dispute about who is to parent the child, the intended parents will have to apply for a parenting order. The court will make a decision on who should have care by considering the child’s welfare and best interests. However, going to court can be an expensive and lengthy process and there is no guarantee of success.   

The simplest way for intended parents to become the legal parents of a child is to apply for adoption, but of course this requires co-operation from the biological parents.

The effect of adoption is that the person/people applying will become the legal parents of the child if successful. The biological parents will cease to have any parenting rights.

The adoption process can be complicated. All biological parents and guardians of the child must consent and a social worker must write a report about the suitability of the intended parents. The Family Court must be satisfied that:

  • The intended parents are fit and proper

  • Adoption is in the child’s welfare and best interests

  • The intended parents will continue the child’s religious upbringing (if any)

With this in mind, it is important that there is trust between all parties to the arrangement. Intended parents should also get help from a lawyer early to help with an adoption application if required.

The Family Disputes Team at Norris Ward McKinnon are experienced in these matters and can assist with this process.


Jo Naidoo is a Partner in the Family Disputes Team at Norris Ward McKinnon. You can contact Jo at [email protected]