Earlier this year, the Law Commission of England and Wales, working jointly with the Scottish Law Commission, published a report and recommendations for a new system of governance around surrogacy, including a draft bill suggesting changes to the system intended to make it work more effectively for all parties – children, surrogate parents and intended parents.
Amongst the changes suggested in the report were the creation of a new pathway to legal parenthood for intended parents in surrogacy arrangements, effectively positioning them as the legal parents from birth.
The reforms would alter the existing parental order process, enabling the courts to make a parental order even in cases in whereby the surrogate doesn’t give their consent (as long as it benefits the welfare of the child).
There is, of course, no guarantee that the government will accept the recommendations set out in the report – entitled Building Families Through Surrogacy: A New Law – nor any indication of how long any actual changes in the law will take to come into effect. So this article will look at the system as it currently stands, detailing what parental orders actually are and why they are important.
What is a Parental Order?
Parental orders are a legal mechanism that transfers legal parental status from the surrogate to the intended parents, effectively ending the legal parental status of said surrogate parent. They have played a crucial role in the surrogacy process since 1994.
Details of the rules that govern parental orders are set out in sections 54 and 54A of the Human Fertilisation and Embryology Act 2008. In addition to transferring legal parental status, a parental order of this kind also means that the intended parents are given parental responsibility for the child.
Parental responsibility refers to all of the duties and rights attached to being a parent of a child, such as dealing with the medical care, education and living arrangements of that child.
It should be noted that having parental responsibility and being a legal parent are not one and the same thing. In some cases, the legal parents of a child will not have parental responsibility for that child, while people who are not actually the legal parents of a child can have parental responsibility.
As things stand, it is not possible to apply for a parental order until after the child in question has been born, and the court cannot make a parental order less than six weeks after that birth.
In practice, it is likely that intended parents will have to wait between six months and a year for a parental order to be made. Once a parental order has been made, as well as the legal status of the child’s parentage, the original birth certificate will be re-issued with the intended parents named as the parents of the child, while the original birth certificate – naming the surrogate parent and in some cases their spouse, will be removed from the public record.
The application process
Certain criteria need to be met in order for the court to make an assessment of the application and a parental order to be made:
- The conception needs to have occurred by embryo transfer or artificial insemination, with the child then being carried by a surrogate rather than the intended parents
- The intended parent – or one half of a couple applying for a parental order – needs to be the child’s biological parent
- Couples applying jointly for a parental order need to be married, in a civil partnership or involved in a long-term family relationship. Since 2019, single applicants have been able to apply for a parental order, and the criteria related to the status of the relationship naturally do not apply in these cases.
- The application for a parental order needs to be made within the six-month period following the birth of the child, although this deadline can be extended by the court in some circumstances
- At the time of the application being made, the child in question must be living with the intended parents.
- At the time of the application being made, and the date on which any order is made, the intended parent – or at least one of a pair of intended parents – needs to be ‘domiciled’ in the United Kingdom, Channel Islands or the Isle of Man. It should be noted that the term ‘domiciled’ doesn’t only apply to where the intended parents are living or refer to their citizenship status, but is based on an assessment and wider judgement of where their permanent home is. This means that some intended parents actually living overseas may be able to apply for a parental order. In the case of CC v DD (2014), for example, the couple in question were living in France but the parental order was made after the court was satisfied that the mother, who was British, still retained her English domicile of origin. The inverse of this might see individuals or couples who live in the UK having to convince the court that they have permanently settled. In the case of AB v SA (2012), for example, the court had to be satisfied that the American-Polish couple making the application, who had recently settled in the UK, had indeed acquired an English domicile of choice.
- The intended parents need to be over 18 when the parental order is made.
- The surrogate and any spouse must consent to the order fully and freely, with the exception of cases in which they can’t be found or are incapable of giving consent. If this consent is given before the child is six weeks old then it will not be valid. Consent of this kind is generally verified through a visit from the CAFCASS parental order reporter, who will witness the consent order being signed and verify that the surrogate parents understand what they are consenting to.
- If any payments over and above reasonable expenses have been paid then the court must agree to authorise said payments retrospectively. Here again, case law has shown the courts tending to be flexible when authorising such payments retrospectively, such that – at the time of writing – the courts have never refused a parental order on the grounds of the level of payments made. Each decision is made in the child’s best interest, and an order which is in the interests of the child will not be denied unless there has been a ‘clear abuse of public policy’.
Once the court is satisfied that all of the above criteria are met, it will decide whether making the parental order is the right way to safeguard the long-term welfare of the child, satisfying itself that there are no risks in terms of safeguarding and encouraging the intended parents (soon to be parents) to be open with the child about the fact that they were born via surrogacy from an early age.
The application process for a parental order is relatively simple:
- The intended parents complete Form C51 and submit it to their local family court
- The court stamps the application and sends a copy, together with Form C52 to the intended parents. The intended parents then pass this on to the surrogate and any spouse (with translation if needed), and the surrogate and spouse should fill-in and sign the form before returning it to the court.
- The court appoints a parental order reporter to carry out background checks, meet the intended parents and child and the surrogate and partner if this last is possible. The parental order reporter will write a report for the court detailing their welfare assessment and making a recommendation re the parental order.
What happens if a Parental Order isn’t granted?
Without a parental order of this kind the intended parents will not have legal status under laws in England and Wales, even if they have been named as parents on an overseas birth certificate. Equally, they won’t have the legal right to make decisions about the education and medical care of the child.
The lack of a parental order could also cause problems with inheritance and pension rights in the future, raise legal complications if the intended parents separate or divorce and make it difficult to obtain or renew a British passport.
It could also mean that the surrogate has to be involved in decisions or legal proceedings relating to the child in the future, and could lead to the involvement of social services.
Should you considering entering into a surrogacy arrangement, or need support with a parental order application, our experienced, empathetic team of lawyers will be able to provide the relevant guidance. Please contact us for an impartial consultation.
