The number of parents in England and Wales using a surrogate, where a woman carries a pregnancy for another couple, has quadrupled in the last decade, according to statistics. There are a number of legal considerations when dealing with a surrogacy arrangement.
What are the types of surrogacy available?
Traditional surrogacy – this type of surrogacy involves a woman who carries a child who is biologically related to her. She is artificially inseminated with the sperm of the intended father, and her eggs are used to conceive the baby. Legally, this can be a more complicated process.
Gestational surrogacy – this type of surrogacy involves the eggs and sperm donated from the intended parents being used and the embryo is implanted via IVF. The child being created is not related to the surrogate mother.
Who is the legal parent of the baby?
When a surrogate is used, the woman who gives birth is always treated as the child’s legal parent at birth, even if they are not genetically related.
If the surrogate is married or in a civil partnership, her spouse/civil partner becomes the child’s second parent at birth, irrespective of genetic parentage, unless it is shown that they did not consent to the conception.
If the surrogate is unmarried at the time of the birth, in most cases the commissioning biological father is treated as the child’s father. However, if conception takes place at a fertility clinic someone else can be nominated as the second legal parent.
Parental Orders
A Parental Order secures the legal status of intended parents under England law and without it, the legal relationship between children born as a result of surrogacy arrangements and their intended parents is not on a secure legal footing. This can have long term consequences for the children and their intended parents in terms of important future decisions. It is therefore crucial that this application is made promptly in respect of children being born as a result of a surrogacy agreement.
A Parental Order is a Court Order which makes the intended parents the legal parents of the child and permanently extinguishes the parent rights of the surrogate (and spouse or civil partner if applicable).
As with most applications before the Court relating to children, the Court must be satisfied that the order is in the Child’s best interests.
There are a number of requirements that must be met before the Parental Order is granted, including:
- At least one of the intended parents must be genetically related to the child
- The intended parent(s) must be over 18
- If making a joint application the intended parents must be married/in a civil partnership or in an enduring family relationship
- The conception must have taken place by embryo transfer or insemination and the child must have been carried by a surrogate
- The application must be submitted to the Court within six months after the child is born
- The child must have his or her home with the intended parents at the time of the application
- At the date of application and the date of the order, the intended parent must be domiciled in the UK
- The surrogate and her spouse must fully and freely consent to the order and this cannot be validly done until the child is six weeks old
- No more than reasonable expenses must have been paid to the surrogate.
Applying for a Parental Order
It is necessary to complete an application form and submit this to the local Family Court within six months of the child’s birth. In some circumstances, an extension will be granted by the Court for applications made after this time.
The Court will appoint a parental order reporter (from CAFCASS) to prepare a report for the Court making a recommendation about whether an order should be made. It will be necessary to attend Court during the proceedings when the Court lists hearings to deal with the application.
The birth mother and anyone else who is a parent of the child must agree to the Parental Order and will be involved in the proceedings.
Surrogacy agreements
The parties involved may wish to have a surrogacy agreement in place prior to the arrangement to expressly state how it will work, as agreed between them. This will ensure parties intentions are clearly set out if a dispute were to arise. However, it’s important to note that these are not enforceable by law.
