Surrogacy and Parental Orders

Surrogacy is becoming an increasingly common way to conceive a child. Over the last decade, the number of people having a child via surrogacy has grown by almost four times. If you are considering having a child via surrogacy then it is important that you know your legal rights.

What is surrogacy?

Surrogacy is when a woman carries and births a child for another person or couple. This can either be by using the surrogate’s own eggs (referred to as ‘traditional surrogacy’) or where the surrogate has no genetic connection to the child (‘gestational surrogacy’).

Who are the child’s legal parents at birth?

Regardless of whether the surrogate’s own eggs are used or not, she will be the legal mother of the child at birth. If the surrogate is married or in a civil partnership at the time of the birth of the child, the surrogate’s partner will be the second legal parent. Otherwise, the child’s biological father will be the legal father at the time of the child’s birth.

To extinguish the surrogate’s legal rights and transfer these to the intended parents, the intended parents will need to apply for and be granted a Parental Order by the court. Once the court makes a Parental Order, the child’s birth will be re-registered in the names of the intended parents.

Why do I need a Parental Order?

Without a Parental Order, the surrogate will remain the child’s legal mother, and her spouse (or the biological father, if the surrogate is unmarried and not in a civil partnership) will remain the child’s legal father. This may cause problems further down the line, such as:

  • Issues relating to inheritance
  • Issues relating to foreign travel and in relation to obtaining a passport for the child
  • Difficulties relating to the child’s medical care
  • Difficulties relating to the child’s education

In the absence of a Parental Order, the surrogate will need to be involved in all major decisions relating to the child.

If you seek advice in relation to surrogacy and Parental Orders, please contact us by telephone or email.

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