Who are the parents of a child born out of a surrogacy arrangement?

Surrogacy is once more in the news – this time highlighting the fact that large numbers of parents who have babies through surrogacy are not applying for the necessary legal orders to ensure they acquire the appropriate legal rights to care for their children.

The result of failing to obtain the necessary court order is that the legal rights remain with the birth mother who may well disappear after the birth of the baby or even live overseas.

One of three High Court Judges who hears surrogacy cases in England and Wales, Mrs Justice Theis, called this a “ticking legal time bomb”, and she is right.

Who are the legal parents of a child born out of a surrogacy arrangement?

The law currently says that the legal mother of a child born through surrogacy will, at birth, always be the surrogate mother, even if she is not the biological mother. This basically means that the intended mother has no legal status, even if her egg was used.

How can this be rectified?

It is very important that the appropriate Court Order is obtained – called a Parental Order – because until then, the intended parents are left in an undeniably insecure position as regards the future care of the child. A Parental Order reassigns parenthood in the same way as a traditional adoption does. Once a Parental Order is made, a new birth certificate is issued naming the intended parents as the legal parents and any rights that others have are extinguished.

In the UK, there are approximately 2,000 children a year born through surrogacy, but last year only 241 cases went through the Court system. Parents are mistakenly thinking that having a British Passport for the child is enough, or one of their names on the birth certificate; assumptions that can leave the legal status of the intended mother open to legal challenge.

The process for obtaining a Parental Order is straightforward – as long as the criteria are met – an Order can be made securing the future not just for the babies concerned but also the parents who want to raise them. At the moment only couples are eligible to apply (married, gay or in a long term relationship) but there will soon be a test case for the law where a single woman is applying for a Parental Order.

If you are considering entering into a surrogacy arrangement, it is vital that you seek legal advice about obtaining a Parental Order and the criteria to be met before your application will be successful. If you would like further advice regarding the issues in this article please contact us on 020 7426 0400.

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.