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Partner and Head of Family Law, Rugby
In my experience, this is perhaps the most important but very rarely asked question. The first question is almost always - how can we bring our baby home? This is not surprising, given that creating life through surrogacy, often in cases where parents have been advised that they cannot conceive naturally for medical reasons, is a dream come true. As soon as the baby is born, the immediate focus is on bringing the baby home and once the immigration hurdles have been passed the legalities of parenthood via surrogacy are somewhat overlooked.
Under English law, the surrogate mother is the legal parent, even if there is no genetic link to the child. If she is married, then her husband or civil partner is regarded the second parent of the child. Therefore, it is imperative that an application for a Parental Order is made so that you are recognised as the child's legal parents and have parental responsibility for your child. Parental responsibility means having all the rights, duties, powers, responsibilities which by law a parent has in order to make appropriate decisions in relation to the upbringing of a child, such as decisions in respect of education, medical treatment and religion.
A parental order application can be made by two applicants who are married, civil partners or living as partners in an enduring family relationship. In a recent Court decision, a single parent was refused an Order. The Court will then need to be satisfied with the following matters:
1. Your application is made within 6 months of your child being born. However, there has been a recent decision of the Court which suggests that this is no longer the case and you can still make an application after this time;
2. There is a genetic connection between at least one of you and the child;
3. The surrogate mother consents to you having a Parental Order and she understands the implications of you having an Order;
4. The surrogate has received payment for reasonable expenses only;
5. At the time of making the application, the child's home is with you and either or both of you are domicile in the UK.
If you would like to discuss your personal circumstances, please contact me.