Surrogacy: What you need to know about Parental Orders
07 June 2021
If you have had, or are planning to have, a child using a surrogate, an essential part of the process is applying for a Parental Order. Our how-to guide answers some of the typical questions we get asked about this process and highlights the importance of Parental Orders:
Why is a Parental Order important?
When a child is born, the law in the UK will always recognise the woman who gives birth to that child as the child’s legal mother. If the surrogate is married, her husband will be recognised as the child’s legal father. The intended mother is not recognised as having any legal relationship with the child. The intended father will only be recognised as having a legal relationship with the child if the surrogate is not married and he has a biological link to the child.
A Parental Order is therefore important following surrogacy, in order to provide clarity around parental responsibilities.
What is the effect of a Parental Order?
When a Parental Order is granted, it recognises the intended parent(s) as the legal parent(s) of the child. The intended parents acquire parental responsibility for the child when the order is made. The surrogate, and her husband if she has one, will no longer be considered to be the child’s legal parent(s) and will no longer hold parental responsibility.
Do I need a Parental Order if my child is born abroad and I am on the child’s birth certificate?
Yes. Regardless of where a child is born and whether or not you are named on your child’s birth certificate and recognised as their legal parent, the UK still recognises the surrogate who gave birth to the child as the legal mother (and her husband, if she has one, as the legal father).
UK law does not recognise you, as intended parents, as having any legal relationship with the child and you do not have parental responsibility for the child under UK law, until a Parental Order is in place.
When should I make my application for a Parental Order?
Your application for a Parental Order should be made between 6 weeks and 6 months after the child’s birth. That said, if you are unable to make the application within that timeframe, there is a precedent for a Parental Order to be made after the 6-month time-limit.
What criteria do I need to meet for the court to grant me a Parental Order?
The criteria for a Parental Order are set out at Section 54 and 54(A) of the Human Fertilisation and Embryology Act 2008:
- The child must have been carried by a woman who is not one of the applicants as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination.
- The gametes of at least one of the applicants must have been used to bring about the creation of the embryo.
- The applicants must be either a single person or a couple who are husband and wife, civil partners or living together in an enduring family relationship.
- The applicant(s) must be over the age of 18.
- The child’s home must be with the applicant(s).
- At least one of the applicants must be domiciled in England or Wales. NOTE: Domicile is a legal concept that is not the same as residence. If you were not born in the UK or are not living in the UK at the time the child is born, it is important to take legal advice on this concept.
- The surrogate (and her husband, if she has one) must freely and unconditionally consent to the making of the Parental Order. This consent cannot be given until at least 6 weeks after the birth of the child.
- The court must be satisfied that no money or benefit has been given to the surrogate in return for carrying the child or consenting to the making of the Parental Order, other than reimbursement of the surrogate’s reasonable expenses. NOTE: The court has interpreted the phrase ‘reasonable expenses’ widely at times, including the encompassing of payments made to surrogates abroad in jurisdictions where commercial surrogacy is legal. It is important to take advice at an early stage as to what payments may or may not be considered to be ‘reasonable expenses’.
How long does the Parental Order process take?
Although this can vary, a rough guide for the timescales of an application from issue to final order is between 6 and 9 months.
If a Parental Order is made, will I be named on my child’s birth certificate?
If a Parental Order is made in your favour, your child’s birth can be re-registered and the new birth certificate will record you as the child’s parent(s). The original birth certificate will be sealed as part of the Parental Order Register and can only be accessed by the child once they are over 18. You can apply for this birth certificate regardless of whether the child was born in the UK or abroad.
What if I don’t meet the criteria for the court to grant a Parental Order?
If you have had a child via a surrogate but do not meet the criteria for a Parental Order, you should explore the alternatives with your specialist lawyer. An Adoption Order might be the first choice of alternative order, as this will make the intended parents the child’s legal parents and extinguish the legal relationship between the surrogate (and her husband, if she has one) and the child.
Sometimes adoption law cannot be used - the process is complicated and sometimes not appropriate, particularly if there are international elements to consider. In these circumstances, a Special Guardianship or Child Arrangements Order can be considered, but these orders do not alter the child’s legal parenthood, but can regulate parental responsibility and with whom a child shall live.