Surrogacy and the Legal Process

Surrogacy is becoming an increasingly viable option for parents who are unable to conceive a child, but what exactly does the legal process of a parental order entail?

Key points about surrogacy law

What many people do not know is that once a baby is born by a surrogate, the surrogate and her spouse/civil partner will have parental responsibility of the child and be named on the baby’s birth certificate.  This means that the surrogate and her spouse/civil partner is recognised as the child’s legal mother and her spouse is classed as the child’s second legal parent.

This is the case even if the intended parents are the “biological” parents of the baby and means that the intended parents are not recognised as their child’s legal parents from the moment that the child is born.  Therefore, the intended parents need to make an application for what is called a parental order.

What is a parental order?

This transfers parenthood from the surrogate and her spouse/civil partner to the intended parents.  The intended parents have to apply to the court for a parental order.  It is important to know that at least one of the intended parents must be a genetic parent of the child born to them through surrogacy.

The parental order will take away the status of the surrogate and her spouse and the legal parenthood and parental responsibility will be reassigned to the intended parent.  There will also be a new birth certificate prepared with the intended parents listed as the parents of the child.

How do I apply for a parental order?

In order to apply for a parental order, you must complete the relevant application form and file this at court.

The timescales for this are important, as you cannot file your application at court before the baby has reached 6 weeks of age, and you must file the application within 6 months of the birth of the child i.e. the application must be filed at some point between the child being 6 weeks to 6 months old.

The court will consider a number of criteria when determining whether to grant a parental order.

What criteria do the court consider when making 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 relationship or living as partners in an enduring relationship or they can be individuals regardless of relationship status

• The timescales above must be adhered to

• The surrogate and their married partner/civil partner must provide their consent no earlier than six weeks after the birth of the baby saying 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

• The child must be living with the intended parents at the time of making the parental order application

• At least one of the intended parents if they are in a couple must be domiciled in the UK

• The surrogate should be paid no more than reasonable expenses, unless authorised by the court

Why do I need to apply for a parental order?

The intended parents need to apply for a parental order so that they have the authority to make decisions about the child’s medical care and education and so that they are able to travel abroad with the child.

If an intended parent does not obtain a parental order, they may face legal complications in future if they separate or divorce.  They may also face difficulties when making future decisions involving their child and may have to find and involve the surrogate to make these decisions as unless and until a parental order has been made, the surrogate and their spouse/civil partner will still be considered to the child’s legal parent and they will have parental responsibility of the child.

What happens once I have filed my application at court?

The court will instruct CAFCASS (who are an independent body that advise the court in relation to children act matters) to allocate a parental order reporter to complete a parental order report in order to assist the court with making their decision.  Usually the parental order reporter will want to meet the surrogate, the intended parents and also see the child before making their report.

The court will consider the application, witness statements of the intended parents, the consent provided by the surrogate and their spouse/civil partner, the CAFCASS parental order report when making their decisions.

In most cases, the court makes a decision about whether to grant a parental order at the first hearing but in some cases they may list the matter for further hearings if the application is contested or there are further complications in relation to the aforementioned “reasonable expenses”.

The court also provide the intended parents with the option of attending court for an official hearing when the parental order is made, so that this can be somewhat of a celebration for the intended parents and their family.

If you would like to find out more about what is involved in the parental order application process, contact our specialist surrogacy solicitors in Wilmlsow, Knutsford, Altrincham, Stockton Heath, Manchester and London.