Surrogacy and Parental Orders

Surrogacy is becoming an increasingly viable option for parents who are unable to conceive a child.  However, there are important legal issues to take into account and that will need to be dealt with following the birth of a baby.

Surrogacy involves an arrangement whereby one person (“the surrogate”) agrees to bear a child for another (the “intended parent(s)”).

Once the baby is born, the surrogate and her spouse/civil partner (if they have consented to the process) will have parental responsibility of the child and be named on the baby’s birth certificate.  Those that have parental responsibility have all of the rights and responsibility for making all of the important decisions that attach to the child, such as in relation to medical treatment and education.  The intended parents do not have any parental responsibility at that point and this can cause problems in terms of travelling abroad with the child or if the intended parents separate in the future.

This position is not what is usually intended by either the surrogates or the intended parents.  In order for legal parenthood to be transferred from the surrogate to the intended parent, the intended parents have to apply to the court for what is known as a “Parental Order”.

In order for the court to grant a parental order, the following criteria must be met:

• The intended parents are above the age of 18;
• The intended parents must be married, in a civil partnership or living as partners in an enduring relationship or an individual (regardless of relationship status);
• The surrogate and their married partner/civil partner must provide their consent no earlier than 6 weeks after the birth of the baby stating that they agree unconditionally to the making of a parental order with full understanding of what is involved;
• The child must have been conceived artificially and be genetically related to at least one of the intended parents or the intended parent if it is an individual applicant;
• The child must be living with the intended parent(s) at the time of making the parental order application;
• The intended parents must apply for the parental order within 6 months of the birth of the child;
• At least one of the intended parents if they are in a couple, or if the intended parent is an individual then the intended parent must be domiciled in the U.K.
• The surrogate should be paid no more than reasonable expenses, unless authorised by the court.

A formal application will need to be made to the court and as part of the process a court welfare officer will be appointed to the case.  The court’s overriding priority will be the best interests of the child.

Surrogacy is not permitted to be a “commercial arrangement” and this is why payments to the surrogate are limited to “reasonable expenses”, although this term has been quite widely interpreted by the court to include expenses such as loss of earnings, medical expenses, maternity clothing and equipment.  It can be helpful to keep a running list of expenses throughout the process so that this can easily be set out at the time the parental order is made.

It is important to consider whether all of the above conditions can be met before the surrogacy commences in order to try to avoid future problems and many fertility clinics require intended parents and surrogates to obtain legal advice about this issue before the process is started.