Surrogate Families

Surrogacy and Parental Orders

Increasing numbers of people are turning to surrogate parents to incubate and give birth to their child. There are, broadly, two forms of surrogacy:

Traditional – The surrogate uses her own eggs and is artificially inseminated with sperm.

Gestational – The surrogate does not use her own eggs but rather those of the intended mother or a donor. This method used is IVF and is therefore always done at a fertility clinic. 

It is important that the intended parents and the surrogate understand and agree the arrangements in place and steps required to transfer legal parentage to the intended parents after birth.

Surrogacy Agreements

The intended parents, and surrogate, can enter into an agreement before conception which regulates the terms of the surrogacy. This is often referred to as a Surrogacy Agreement.  The agreement can cover conception, expenses, arrangements for birth, the handover process, potential future relationship between the surrogate and child amongst and other matters. 

Such agreements ensure that all understand what is expected, hopefully creating clarity and good communication. However, it is important to note that surrogacy agreements/contracts are unenforceable in the United Kingdom under any circumstances.

Who is the child’s legal parent at birth?

In the United Kingdom, the surrogate will be the child’s legal parent at birth .

If the surrogate is married, or in a civil-partnership, their spouse/partner will also be the child’s legal parent unless it can be shown that they did not give consent. If the surrogate is not married, and if conception takes place in a fertility clinic in the United Kingdom, someone else can be nominated to be the child’s other legal parent (i.e. an intended parent).

If the child is born in England or Wales, the surrogate is responsible for registering the child’s birth within 42 days and she will be registered as the child’s mother. If the surrogate is not married or in a civil partnership, the other legal parent (i.e. an intended parent) may be registered as the second parent provided that they attend the registration. 

If the intended parent is not the biological parent, they will have to produce the nomination forms which were signed before conception. 

What is a Parental Order and do I need one?

Once the child is born a Parental Order is required from the court to make intended parents the legal parents of the child. Once made, it extinguishes the parenthood of the surrogate and their spouse/civil partner.

The child’s birth will be re-registered to record both intended parents as the legal parents and a new birth certificate will be issued. The original birth certificate will be kept as part of the Parental Order Register which will be accessible to the child once he or she turns 18. 

If the Parental Order is not obtained then the intended parents will not be the legal parents for the child.

What is a Parental Order and do I need one?

To obtain a Parental Order, the court must be satisfied that the order is in the child’s best  interests and that the intended parents meet all of the following criteria:-

1. The conception must have taken place by way of embryo transfer or artificial insemination and the child must been carried by the surrogate.
2. At least one of the intended parents must be the biological parent to the child.
3. The intended parents must be married, in a civil partnership or living together as partners in an enduring family relationship.
4. The intended parents must both be at least 18 years old. 
5. The intended parents must submit the application between 6 weeks and 6 months after the child’s birth (save in exceptional circumstances).
6. The child must be living with the intended parents at their home at the time of the application.
7. One or both intended parents must be domiciled in the UK, Channel Islands or the Isle of Man. 
8. The surrogate and her spouse/civil partner must fully and freely consent to the order. The surrogate cannot give valid consent until the child is 6 weeks old. The court can only dispense with the surrogate’s consent if the surrogate cannot be found or is incapable of giving consent. 

Nothing more than reasonable expenses have been paid to the surrogate or the court must agree retrospectively to authorise those payments.

How do I obtain a Parental Order?

An application for a Parental Order should be issued at court following the birth of the child which, when processed, will be returned to the intended parents who must then give this to their surrogate (and their spouse/civil partner) who should sign and return it to the court. 

The court will ask Cafcass / CAFCASS Cymru to provide a Parental Order Reporter to prepare a report with a recommendation about whether a Parental Order should be made. The Parental Order Reporter will usually meet with the intended parents, see them with the child and the surrogate (and her spouse/civil partner) to ensure that she fully consents. 

The court will list an initial directions hearing where the court will usually ask for a statement setting out how the surrogacy came about and request supporting documents to show how the intended parents have satisfied the criteria for a Parental Order. It is therefore highly advisable to retain as much correspondence between the intended parents and the surrogate and the intended parents and the fertility clinic together with receipts of payments made to the surrogate/clinic and detailed notes on the nature and timing of payments.

At this initial hearing the court will also decide on the timescale for the Parental Order report and list the matter for a final hearing. 

In straightforward UK surrogacy cases there will usually only be one or two informal court hearings. If there are complicating or international aspects, the application will be heard by a High Court Judge. 

Our team are able to help and support you every step of the way to ensure that you are prepared and that when the time comes to bring your application, that your application is properly and comprehensive to obtain a successful outcome. 

Is a Parental Order necessary?

Without a Parental Order one or both of the intended parents will not be a legal parent in the UK. This has the potential to create a number of issues:-

• The parents will have not legal authority to be able to make basic decisions for the child’s medical care (including consent to immunisations and medical treatment) or education (such as where the child goes to school and which school trips they go on).
• The need to find and involve the surrogate in any basic or kay decisions about the child and any legal proceedings involving the child.
• Implications for inheritance and pension rights.
• Legal difficulties is the parents separate or divorce and one wishes to move abroad. 
• Difficulty in obtaining and renewing a British passport. 
• Social services may need to be involved to oversee the situation (failure to notify the social services in some cases is a criminal offence).