By Hannah Saxe – Senior Associate Solicitor, Family Law.
Transgender and non-binary people are increasingly opting for surrogacy as their chosen path for building a family.
To mark this year’s Transgender Day of Visibility we thought it important to highlight some key issues that transgender and non-binary people might need to consider before embarking on a surrogacy journey.
Surrogacy is when a person (“the surrogate”) carries and gives birth to a child for another person or couple (“the intended parent(s)”).
In England and Wales, the surrogate will always be the child’s legal mother at the time of birth but the intended parent(s) can apply for a Parental Order from the family court to transfer legal parenthood to them and extinguish the legal parenthood of the surrogate.
Transgender people who wish to pursue surrogacy may want to consider undergoing treatment to preserve their fertility so they can have eggs, sperm or embryos in storage ready to use at a later stage. Alternatively, they may be able to provide eggs or sperm now to create embryos to conceive a child.
They may need to think about egg or sperm donation, or both, often called “double donation”, to help them conceive. If they are unable to use their own genetic material or eggs/sperm from their partner, then building a family using surrogacy can be complicated from a legal perspective. This is because they will not meet the criteria to apply for a Parental Order. There are other ways to secure legal parenthood, such as adoption, but as the law about adoption was not intended to deal with surrogacy situations this can be a complex process.
There are also potential practical difficulties. For example, as a consequence of there being no straightforward route to legal parenthood in double donation situations, they might have difficulties matching with a surrogate and UK fertility clinics might be reluctant to provide treatment.
They might therefore consider finding a clinic and/or a surrogate overseas but this can present challenges too. Intended parents might have difficulties from an immigration law perspective when it comes to them wishing to return to this country with the child. They will also need to ensure that they can be recognised as legal parents in this country so careful planning and specialist legal advice prior to conception is essential.
As a consequence of the disappointing decision in a recent case involving a transgender man who the court decided must be referred to as his child’s mother on their birth certificate, transgender parents might worry about the title they will have on their child’s birth certificate. However, if they meet the criteria to apply for a Parental Order and are successful in doing so, their child born through surrogacy will be issued with a new UK birth certificate recording that they are the child’s “parents”.
At Irwin Mitchell we support transgender men and women and non-binary people and the wider LGBTQ+ community when it comes to building their families through surrogacy and assisted conception so if you need advice about the issues raised above then please get in touch with one of our experts.