SURROGACY & PARENTS RIGHTS
Surrogacy arrangements are increasingly common. If you are thinking about having a child through a surrogate mother it is important to get specialist legal advice about the need for and conditions to obtain a Parental Order.
Under English law, the surrogate mother is the legal mother of the child even if she has no genetic connection to the child. This is until a Parental Order or an Adoption Order is made.
If the surrogate mother is married or in a Civil Partnership then her husband or Civil Partner is regarded in English law as the legal second parent of the child unless he or she didn’t agree to the surrogacy arrangement.
If the surrogate mother is unmarried it is possible for the intended father to be treated as the legal father if he is the genetic father or if he is nominated as the other legal parent when the child is born.
It is not illegal to pay a surrogate mother for her services in the UK. However, if a Parental Order application is made the Court will need to authorise any payments made over and above the expenses that she has reasonably incurred. The Judge in the Parental Order application will consider carefully the payments made and the level of those payments.
A Parental Order recognises you as the legal parents and will extinguish the legal parentage of the surrogate mother and her husband. Without a Parental Order, you will not be the legal parents of the child under English law and you won’t have Parental
A Parental Order application can be made by to applicants who are married or Civil Partners or living as partners.
In order to obtain a Parental Order you will need to meet a number of conditions:
- The application must be made within six months of the child’s birth.
- The surrogate mother must fully consent to the Parental Order and understand that she will be giving up parental rights.
- No payment should have been made to the surrogate mother save for necessary reasonable expenses. The Court can give retrospective approval to payments over and above reasonable expenses.
- There must be a genetic connection between the child and at least one applicant for the Parental Order
- At the time both of the application and the making of the order the child’s home must be with you.
- Either or both of you must be domiciled in the UK
If you are granted a Parental Order the Parental Responsibility of the surrogate mother is extinguished. You have full legal responsibility for the child under English law.
When deciding whether or not to make a Parental Order the Court has to take into account a set checklist of factors. As the Order it is like adoption it is not just whether making the Order would be in the best interests of the child during his or her minority but the lifetime of the child. Thus even if there are other orders the Court could make to achieve the parents getting Parental Responsibility while the child is under 18 and lives with them ( for example a Child Arrangements Order ) a Parental Order has the added benefit that it creates a legal relationship for the rest of the lives of everyone involved.
The application for a Parental Order is made to the local Family Court. The Court will usually arrange for an officer from CAFCASS to prepare a report. They are called Parental Order Reporters. The Reporter should visit you at your home and talk to both of you. Their task is to report to the Court on whether the conditions are met and also to report on whether it is in the child’s welfare interest to make the Parental Order. Normally, unless there are unusual circumstances or an international element, the Court will make the Parental Order without difficulty.
Our child specialist solicitor, Louise Halford has many years of city centre experience in helping families obtain Parental Orders. Louise has a reputation for being approachable and offering sensitive support and legal advice.