Contemplating surrogacy? Obtaining legal parenthood

Surrogacy is growing in popularity as a way to start and expand a family. If you are in the early stages of researching having a child via surrogacy it is important to understand how to obtain legal parenthood.

It is the surrogate mother, who will be your child’s first legal parent. This is the case regardless of whether the surrogate mother is genetically related to your child.

If you have a child by a surrogacy, you must apply for a ‘parental order’ to become the legal parent of your child. Otherwise, the surrogate mother will remain the legal parent. A parental order must be applied for whether the surrogacy takes place in the UK or anywhere else in the world.

Linda Pope, a Partner in our family law team, highlights the key criteria for the court to make a parental order under the Human Fertilisation and Embryology Act 2008 (HFEA).

You must obtain consent from the surrogate mother

The surrogate mother must consent to the making of the parental order. They do this by filing a specific form with the court after your child has been born.

As you need consent from the surrogate mother of your child, it is important to have a discussion with them before beginning the surrogacy process, to make sure they are happy to consent to the making of a parental order when the time comes.

It is important the surrogate mother understands the content of the form. If they do not, you must take measures so that they do. For example, if your surrogate mother speaks French and does not understand English you could instruct a family lawyer who speaks French to explain the contents and provide a French translation of the form.

If your surrogate mother refuses consent, other orders can be made by the court conferring parental responsibility on you, and limiting their parental responsibility, where your child’s welfare is best served by doing so.

A parental order must be applied for within six months of your child being born

It is important you apply for a parental order in time. But what happens if you miss the six-month timeframe?

The process of obtaining a parental order will be much more straightforward if you apply within the six-month time frame. However, parental orders have been made where the parents who were having a child via a surrogacy (the ‘intended parent(s)’) were not aware of the requirement to apply for a parental order and therefore applied out-of-time.

Genetic relationship to the child

If you choose to have a traditional surrogacy, your surrogate mother will have a genetic relationship with your child as their own egg will be used to conceive your child. There is no genetic relationship between the surrogate mother and your child if you choose to have your child via a gestational surrogacy, as the embryos are made by you and transferred via IVF to the surrogate mother.

If you are applying as a single applicant, you will need to be genetically related to your child. If you are applying with your spouse or partner, then at least one of you will need to be genetically related to your child.

Occasionally, the court has made an exception where the individual who is genetically related to the child has died before the child has been born or after a parental order has been applied for but before it has been granted.

Where there are two of you applying for a parental order, you must be married, in a civil partnership or in an enduring family relationship

So, what if you are no longer in a relationship with the other intended parent when you apply for a parental order?

If this is the case, you and your ex-partner can be considered as having an enduring family relationship because of your commitment to your child.

And what about if your relationship breaks down after you apply for a parental order but before the order is granted?

The court can still consider you to be an enduring family relationship, if making the parental order would be the best thing to do when considering the welfare of your child.

The child’s home

When applying as a couple, your child must live with you at the time of application, and when the order is made. In practice, where the relationship between intended parent’s has broken down and they no longer live together, the court has interpreted ‘intended home’ to mean two separate homes, even where the child spends significantly more time in one home.

Domicile in the United Kingdom, Channel Islands, or the Isle of Man

If you are going to be a single parent, your permanent home must be in United Kingdom, Channel Islands, or the Isle of Man. For a couple, one of your homes must be in one of these countries.

If you or your spouse or partner were born outside of these countries, when determining their permanent home, the court will consider whether they plan to return to their birth country, and which country they wish to raise their family.

Age

You must be at least 18 years of age when the parental order is made.

Money or benefit

Commercial surrogacy is a criminal offence in the UK and technically money should not be paid to a surrogate mother or surrogacy agency, other than for reasonable expenses such as medical bills and pregnancy related costs. In practice, many surrogates receive payment, especially if the surrogacy has taken place in a country where commercial surrogacy is legal.

The court can approve payments after they have been made and will consider factors such as: whether the payment was exploitatively low or so high it may have put excessive pressure on the surrogate mother to agree.

Ultimately, courts make parental orders even in cases where significant payment has been made, where, having regard for the child’s welfare, it is best to do so.

Welfare of the child

The welfare of the child must be the court’s ‘paramount’ consideration when deciding to make a parental order. The court directs a Children and Family Court Advisory and Support Service (CAFCASS) officer to prepare a report, which includes observing you with your child to assess if it would be in the child’s best interest to make the parental order.

How can we help

For more information on applying for a parental order, please contact Linda Pope.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.