The Human Fertilisation and Embryology Act 2008 allows the court to make a Parental Order in relation to a child born through surrogacy. The following conditions must be met:
- The child must be genetically related to one of the commissioning parents;
- The commissioning parents must be married, civil partners or cohabitants in a committed relationship;
- The application must be made within six months of the child’s birth;
- The child’s home must be with the commissioning parents;
- At least one of the commissioning parents must be domiciled in the UK (including the Channel Islands or the Isle of Man);
- The commissioning parents must both be over eighteen;
- The surrogate (and any other legal parent) must agree to the Parental Order; and
- No money or benefit (other than for reasonable expenses) may have been paid in relation to the surrogacy.
The court can still make a Parental Order even if payments have been made beyond those described in the last condition. Whether it will do so depends on (among other considerations) the sums involved and the surrogate’s financial circumstances. The court will look very carefully indeed at an arrangement that amounts to the commercial ‘purchase’ of a child via surrogacy.
Once a Parental Order is made, the commissioning parents will become the child’s legal parents and will acquire parental responsibility. The surrogate (and any legal father or second parent) will cease being the child’s legal parents. A new birth certificate will be issued for the child naming the commissioning parents.
The law currently does not allow a single commissioning parent to apply for a Parental Order although this is expected to change in 2018, with a proposed change in the law.
If commissioning parents cannot apply for a Parental Order (for example, if neither is related to the child genetically, if the surrogate has withdrawn her consent, or if there is only one commissioning parent), an application for an adoption order is an alternative option.