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It’s National Surrogacy Week, raising awareness about modern families and about surrogacy. As this is a complex evolving area of law, it is therefore important that legal advice is sought as early as possible. Here is our legal guide to becoming a parent through surrogacy.
Surrogacy is when another woman carries and gives birth to a baby for the couple who want to have a child. This can be achieved by using your egg and sperm which are fertilised outside the womb and implanted into a surrogate mother, inseminating the surrogate mother’s egg with your sperm or by using egg donors and anonymous sperm.
Commercial surrogacy in England is illegal. The surrogate mother is only permitted to be paid expenses related to having the baby. If you are thinking of or have entered into a surrogacy arrangement abroad, it is extremely important that you take legal advice in that Country as well as in England, in relation to the legality of the surrogacy and any immigration implications because you will want to bring baby home soon after the birth.
Whichever way you go about it, 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.
It is important 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 a Parental Order. The Court will then need to be satisfied with the following matters:
Your application is made within 6 months of your child being born. There has however, 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
There is a genetic connection between at least one of you and the child
The surrogate mother consents to you having a Parental Order and she understands the implications of you having an Order
The surrogate has received payment for reasonable expenses only
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 do not satisfy the requirements, then there are alternatives to obtaining a Parental Order which can give you parental responsibility for your child.