Family

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Simon Craddock

Partner and Head of Family Banbury

Insolvency

Surrogacy Law and Parental Orders

Creating a life and becoming a parent through surrogacy is amazing!

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.

The law around surrogacy

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.

What is a Parental Order?

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.

Parental Order applications

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:

  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 do not satisfy the requirements, then there are alternatives to obtaining a Parental Order which can give you parental responsibility for your child.

Please contact our expert in Surrogacy and Children law, Kim Lehal, who will happily go through all of the options available to you and guide you through the process from start to finish so that you can focus on taking care of baby!

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