Surrogacy Law Solicitors

When a child has been born to a surrogate, the Intended Parent(s) should apply to the Family Courts for a Parental Order to transfer parenthood from the Surrogate (and her spouse) to the Intended Parent(s).

There are certain criteria that should be complied with before a Parental Order can be applied for and it is important to consider this prior to progressing with the surrogacy.

Typically, the Legal Process for applying for a Parental Order will be as follows:

1. The Intended Parents will make the application within the 6 months following the birth of the child. The court will often require a statement to be prepared setting out how the required criteria have been complied with which can be provided in advance of the first hearing;
2. A directions hearing will be listed to ensure that the criteria have been properly complied with and to consider whether any expenses reimbursed to the Surrogate are reasonable. In some cases the court may not require parties to attend this hearing and directions will be made in writing. In cases where there are complexities there may need to be more than one direction appointment;
3. A court appointed social worker (known as a Parental Order Reporter) will be appointed with the purpose of assisting the court to safeguard the interests of the child. The Parental Order report will usually want to meet with the Intended Parents and see them with the child. They will also want to make sure that the surrogate consents. The process is typically expected to take between 8-12 weeks;
4. There will be a final hearing where a decision will be made. The Intended Parents are generally permitted to attend this hearing with the child as it can be a celebratory occasion.

The criteria are as follows:

• The Intended Parents must be over the age of 18
• The Intended Parents must be in an “enduring relationship” if a couple or an individual can apply regardless of relationship status
• The Surrogate (and her partner if) must give their consent to the parental order being made. They are not able to provide this consent any earlier than 6 weeks after the birth of the baby
• The child must have been conceived artificially and be genetically related to at least one of the Intended parents if in a couple or the Intended Parent if an individual
• The child must be living with the Intended Parents
• 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 must be domiciled in the UK; and
• The surrogate must be paid no more than their “reasonable expenses” unless ordered by the court.

Without a Parental Order, the Intended Parent(s) will not be the child’s legal parents unless parenthood is obtained through adoption. This could cause the following issues for the Intended Parents:

• Limit their ability to make decisions about education and medical care of the child
• They may not be able to travel abroad with child
• Complications if they divorce/separate
• Difficulties with inheritance/pensions

In these examples, the Intended Parents may need to find the surrogate to make future decisions about the child.

Even if surrogacy takes place abroad, if you live in England & Wales you must still obtain a parental order to be considered the legal parents here.

Current law in England and Wales holds that money should not be a motivating factor for the Surrogate but they can be appropriately reimbursed for their “reasonable expenses”. This term has been quite widely interpreted by the family court and could include (amongst other things):

• The Surrogate and their partner’s loss of earnings
• The costs of any additional child care to support pregnancy and ante natal visits for the surrogate
• Help with cleaning during pregnancy
• Additional food and supplements
• Classes/therapies
• Travel and accommodation
• Maternity clothes
• A modest recovery break

As part of the parental order application, the Intended Parents will need to set out how much was paid to the surrogate and what it was for. If the Court thinks more has been paid than reasonable it will decide whether or not to authorise the additional payments. The Court’s paramount consideration is the lifelong welfare of the child.

If you are in any doubt about your eligibility to apply for a Parental Order, you should seek legal advice, ideally before the surrogacy commences. We are expert family law solicitors and have experience in dealing with this type of case. We can advise you and help you through the surrogacy law process.