The Surrogacy Journey: Parental Orders

18 Jan 2017

Under the law in England and Wales, the person that carries the child is the legal mother, regardless of whether there is a biological link or not. If the surrogate is married or in a civil partnership then her husband/partner is the second legal parent. Therefore, steps would need to be taken after the birth to ensure the intended parents are the legal parents.

As Kim Kardashian and Kanye West announce the birth of their baby daughter, social media has gone into a frenzy with well wishers congratulating the couple. Whilst this is no doubt a happy time, if the couple were in England or Wales, they would now be facing lengthy legal proceedings now that their child has arrived.

The preference is to obtain a parental order as that makes the intended parents the legal parents and extinguishes the status of the surrogate, and her partner if she has one. After a parental order is granted the child would be issued with a new birth certificate naming the intended parents as the parents.

The process is not always straightforward though. The couple must satisfy the court that the order is in the child’s best interests and they meet the following criteria:

  • The conception must have taken place by embryo transfer or artificial insemination, and the child must have been carried by a surrogate
  • One or both of the intended parents must be the child’s biological parent
  • The intended parents must be married, civil partners or living together as partners in an enduring family relationship (although the law is set to change in 2018 to enable single parents to apply too)
  • The intended parents must submit the application to the court within the six months after the child is born (although in exceptional cases the court can extend this) At the date they apply and the date the order is made the child must have his or her home with the intended parents
  • At the date they apply and the date of the order, one or both of the intended parents must be domiciled in a part of the United Kingdom, Channel Islands or Isle of Man
  • The intended parents must both be over 18 when the order is made
  • The surrogate and her spouse must fully and freely consent to the order (unless they cannot be found or are incapable of giving consent). The surrogate cannot validly consent until the child is six weeks old
  • No more than reasonable expenses must have been paid, or the court must agree to ‘authorise’ the payments retrospectively.

It is sensible to get advice on what is involved in the application for a parental order in advance of the birth of the child. A lot of the evidence required for the application can be prepared in advance of the birth allowing people to enjoy their baby when they arrive and not worry about the court process.

In the past people have questioned whether a parental order is required. The child is usually handed over at birth and it may be tempting to ignore the legalities when busy focussing on the new addition. We would strongly advise against that. In 2013, Mrs Justice Theis (one of the UK’s specialist surrogacy judges) said: “The legal relationship between children born as a result of surrogacy arrangements and their intended parents is not on a secure legal footing without [a UK parental order] being made. That can have long term legal consequences for the children… The message needs to go out loud and clear to encourage parental order applications to be made in respect of children born as a result of international surrogacy agreements, and for them to be made promptly.”

Without a parental order, one or both of the intended parents will not be a legal parent in the UK which means:

  • The parents not having legal authority to make basic decisions about their child’s medical care and education
  • Problems with inheritance and pension rights
  • Legal complications if the parents separate or divorce
  • Difficulty obtaining or renewing a British passport
  • Social services involvement (and in some cases a criminal offence for parents who fail to notify social services about their situation)

We recommend obtaining legal advice at an early opportunity. It can make the experience a lot less stressful if the intended parents are fully informed and have their application organised before their