Parental orders are fundamental to the surrogacy process. They transfer the legal parentage from the surrogate mother to the intended parents. Whilst in most instances the process should be fairly straightforward, it pays to take specialist legal advice.
Surrogacy in the UK is increasingly an option for many, including unmarried couples in enduring relationships and single applicants wishing to conceive a child. Research by the University of Kent in 2020 points to an increase from 117 to 413 cases a year over the past decade.
Parental orders area critical step that extinguishes the legal relationship between the baby and the surrogate mother, and transfers the legal parentage to the intended parents.
In theory, without a parental order, the baby’s intended parents are unlikely to have parental responsibility and may not be able to make major decisions about education, care and medical treatment, religion and travel overseas with the child. Parents may place themselves in the unwanted and difficult position of having to seek the consent of the surrogate when wishing to make important decisions about their child. In later life they may face challenges surrounding inheritance from their parents.
A parental order can only be made once the child has been born and with the consent of the surrogate, which can’t be obtained until six weeks after the birth. Until a parental order is made by the English courts, the surrogate remains the legal mother of the child under English Law. If the surrogate is married, her husband would also be considered to be the legal father. Applications for parental orders are brought within the Family courts, or the High Court for overseas surrogacy arrangements. As part of the proceedings, the court will appoint a parental order reporter, who is essentially a court-appointed social worker.
There are, as you might expect, certain conditions that intended parents must meet. These include:
- The intended parents must be aged 18 or over.
- Usually, they must be married, in a civil partnership or living as partners in what the courts call an enduring relationship. Although since January 2019, single applicants may apply.
- The surrogate must give consent, but must wait six weeks after the birth of the baby.
- The baby must be conceived artificially and be genetically related to one of the intended parents.
- The baby must be living with the intended parents.
- No expenses other than those reasonably incurred should be made unless authorised by the court.
- At least one of the intended parents must be domiciled in the UK.
Additionally, the application for the parental order must be made by the intended parents within six months of the baby’s birth.
A parental order application follows four steps:
- Step 1. Intended Parents apply for the parental order within six months of the child’s birth in the Family court;
- Step 2. The court will list the matter for a directions hearing (during and since covid these have increasingly been decided on paper). At this hearing, the court will appoint a parental order reporter and direct them to provide a welfare report to help the court reach its decision. The court will also direct the intended parents to file witness statements with supporting evidence explaining how they meet the criteria for making a parental order. The court will also list a final hearing of the matter.
- Step 3. The parental order reporter will arrange to meet the intended parents and baby to ensure the child’s best interests are considered. They may also contact the surrogate to ensure consent is freely given. The parental order reporter will then file their report with the court.
- Step 4. The final hearing will take place and the court will make its decision.
Once a parental order has been made and completed, the courts will send a copy to the General Registry Office (GRO). The GRO will contact the new parents to let them know that a new birth certificate/the parental order certificate can be obtained.
International surrogacy involves further complications and is addressed in a separate article.
The above is accurate as at 07 October 2022. The information above may be subject to change during these ever-changing times.
The content of this note should not be considered legal advice and each matter should be considered on a case-by-case basis.
