Surrogacy and same sex couples
As a same sex couple you may be considering surrogacy as one of the ways you can create the family you long for, sharing a genetic connection with your child. You will care for them from birth, and will not share parenting, so it’s sensible to take your time and consider your options.
Our experienced team here at Buckles can advise you about any surrogacy arrangement you are considering, or if you need support with a parental order application, our empathetic team of lawyers will be able to provide the guidance needed to help you make informed decisions.
The team here write regularly on matters related to all aspects of surrogacy, such as parental orders, which are considered here:
Surrogacy parental orders
The Law Commission of England and Wales, working jointly with the Scottish Law Commission, drafted recommendations for a new system of governance around surrogacy, all intended to make it work more effectively for all parties – children, surrogate parents and intended parents.
The creation of a new pathway to legal parenthood for intended parents in surrogacy arrangements was suggested, effectively positioning them as the legal parents from birth. The suggested parental order process, would enable the courts to make a parental order even when the surrogate doesn’t give their consent, as long as it benefits the welfare of the child.
However, we have no indication if or when change will happen, so we’ll explain how the current system works, what parental orders are and why they are important.
What is a Parental order
The rules that govern parental orders are detailed in sections 54 and 54A of the Human Fertilisation and Embryology Act 2008.
Parental orders play a crucial role in the surrogacy process, transferring legal parental status from the surrogate to the intended parents, effectively ending the legal parental status of the surrogate parent and giving the intended parents, parental responsibility for the child.
Parental responsibility refers to all of the duties and rights that come with being a parent of a child, such as dealing with their medical care, education and living arrangements.
Having parental responsibility and being a legal parent are not the same. Sometimes, the legal parents of a child will not have parental responsibility, while people who are not actually the legal parents of a child, can have parental responsibility.
Currently, you cannot apply for a parental order until after the child has been born, and the court cannot make a parental order less than six weeks following the birth. Typically, the intended parents will wait 6-12 months for a parental order to be made.
The parental order will recognise the legal status of the child’s parentage, with the birth certificate re-issued with the intended parents named as the parents of the child and the original birth certificate removed from the public record.
How to apply for a parental order
Certain criteria must be met for the court to make an assessment of the application and a parental order to be made:
- The conception must have occurred by embryo transfer or artificial insemination, with the surrogate carrying the child to birth, rather than the intended parents
- The intended parent [or one half of a couple] applying for a parental order, must be the child’s biological parent
- Couples applying jointly for a parental order must be married, in a civil partnership or involved in a long-term family relationship.
- The application must be made within the six-month period following the birth of the child, although this can be extended in some circumstances
- When the application is made, the child must be living with the intended parents.
- At the time of the application and when any order is made, the intended parent [or at least one of a pair of intended parents] must be ‘domiciled’ in the United Kingdom, Channel Islands or the Isle of Man. The term ‘domiciled’ is based on an assessment of where their permanent home is, which means some intended parents living overseas could apply for a parental order.
- 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 is generally verified through a visit from the CAFCASS parental order reporter, who will witness the consent order being signed and verify the surrogate parents understand what they are consenting to.
- If any payments beyond reasonable expenses have been paid, the court must agree to authorise them retrospectively. The courts tend to be flexible in this regard and currently, the courts have not 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 the criteria are met, it will decide whether making the parental order is the right way to safeguard the long-term welfare of the child. The court must be satisfied there are no risks in terms of safeguarding and will encourage the intended parents (soon to be parents) to be open with the child from an early age, that they were born via surrogacy.
Application process
The intended parents complete Form C51 and submit it to their local family court. The court then stamps the application and sends a copy, together with Form C52 to the intended parents, who pass this to the surrogate and any spouse (with translation if needed). The surrogate and spouse then fill-in and sign the form, before returning it to the court.
The court appoints a parental order reporter, who undertakes background checks, meets the intended parents and child, then the surrogate and partner if possible. The parental order reporter then details their welfare assessment to the court and makes a recommendation regarding the parental order.
When a Parental Order is not granted
Without a parental order, the intended parents have no legal status under laws in England and Wales, even if they have been named as parents on an overseas birth certificate. Equally, they do not have the legal right to make decisions about the child’s education and medical care.
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, which 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 family law team is here to provide the relevant guidance and help you make informed decisions. Please contact us for an impartial consultation.
