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Surrogacy and Parental Orders
Surrogacy is the process by which a child is carried through pregnancy by a woman who had entered into an arrangement with the intention that, at birth, the child and parental responsibility for the child will be transferred to another person or persons, known as the intended parent(s).
Either a couple or a single person can agree to have a child by surrogacy.
If you are using a surrogate to start a family, you will need to undergo fertility treatment with your surrogate.
At birth, the surrogate mother will be the legal mother of the child, regardless of the presence of any genetic connection. If the surrogate is married, the legal father will likely be her husband. If the surrogate is unmarried, the legal father will likely be the intended father.
For that reason, after birth, the intended parent(s) will need to make a special court application to obtain parental rights, known as an application for Parental Order. The transfer of legal parenthood and parental responsibility to the intended parent(s) can only be done by the Court, making a parental order under section 54 of the Human Fertilisation and Embryology Act 2008.
It is necessary to make the application for a Parental Order within six months of the child's birth. The surrogate mother and her husband are required to consent to the Order in writing, but they can only provide this consent six weeks after the child is born.
Applying for a Parental Order
The legal requirements for applying for a Parental Order under Section 54 Human Fertilisation and Embryology Act 2008.
The process typically includes two court hearings and the involvement of a special Parental Order Reporter from Cafcass (Children and Family Court Advisory and Support Service), who will meet with both the intended parents and the surrogate parents. The reporter will then make a recommendation to the Court.
Of late, intended parents have been experiencing delays obtaining their Parental Orders due to Court backlogs caused by the coronavirus pandemic. These delays are leaving intended parents in legal limbo. Their children are living with them, but they do not have any parental rights to their children until the Parental Order has been granted. They are parents by nature but not by name.
Besides applying for a Parental Order, there is no alternative method of obtaining legal rights for children born by surrogacy in the UK. Commercial surrogacy arrangements are not legally enforceable, and the current delays in obtaining a Parental Order may leave intended parents feeling vulnerable. It is more important than ever to get legal advice at an early stage so that court applications can be drafted in advance and are ready to submit at the earliest opportunity.