Surrogacy agreements are becoming increasingly popular, especially internationally, as a result of the UK ban on commercial arrangements.
So what do prospective parents making plans to become a family via this process need to know?
- Under UK law, the surrogate is registered legally as the child’s mother, despite the embryo not being hers; and if she is married at the time of the birth then her husband is legally the father unless he did not consent to the arrangement (a difficult one to prove).
- The prospective parents therefore need a court order to transfer legal parentage to them; otherwise they will be left with no legal rights to make big life decisions for their son or daughter throughout their childhood.
- The orders available are Parental Orders or Adoption Orders. The process for legal adoption is a complex one so Parental Orders are preferred in these circumstances.
What is a Parental Order?
- Once an order is made it extinguishes the surrogate birth parents’ legal rights over the child and transfers them to the applicant parents.
- The birth is then re-registered in the new parents’ names.
How easy is it to apply for and obtain a Parental Order?
The law governing Parental Orders is set out at Section 54 of the Human Fertilisation and Embryology Act 2008 and it confers a number of strict conditions which must be satisfied before an order will be made, namely:
- There must be 2 applicant parents and they must be married, civil partners or living as partners in an enduring family relationship. This means single parents cannot apply (although the law is set to change on this point in the near future).
- The child must have been conceived by way of embryo transfer or artificial insemination, and carried by a surrogate.
- At least one of the applicants must be the child’s genetic parent.
- The application must be made within 6 months of the birth of the child.
- The child must be living with the applicant parents at the time the application is made and when the eventual order is made.
- When both the application and order are made at least one of the applicants must be domiciled in the UK, Channel Islands or Isle of Man.
- At the date of the order both the applicant parents must be over the age of 18.
- The surrogate birth mother (and her husband if married) must freely give her consent to the order being made. This consent cannot be given until the child is at least 6 weeks old.
- Only reasonable expenses can have been paid to the surrogate mother, if any other funds have been paid then these would have to be retrospectively authorised by the court and the rules in relation to this are very strict.
What is the court process?
- Firstly, an application for a Parental Order is filed at the family court local to the home of the applicant parents, or the Central Family Court in international case.
- Once the application has been processed the surrogate mother/parents must give their consent by signing the relevant form.
- A court appointed representative is then assigned to the case. He or she will meet with the applicant parents and if possible the surrogate parents also, and will write a report including a recommendation as to whether the order should be made.
- There will be one or two informal court hearings (if heard in the local court; more detail will be required for international cases) where a little necessary evidence is given to the court.
- The court will then decide whether to make the order in favour of the applicants.
What if the intended parents don’t apply for a Parental Order?
Difficulties throughout childhood may be frequently encountered such as:
- The new parents will have no legal rights to make decisions about the child’s education or medical care. Meaning the surrogate parents will have to stay involved or in contact, to make such decisions.
- Difficulties in terms of inheritance, pensions and insurance policies for the benefit of the child may arise.
- Potential problems in applying for or renewing a British Passport for the child.
- Legal standing upon divorce or separation as to the child’s future would be extremely complex to establish and costly to manage.