Fertility 3c

Parental orders and surrogacy law

Parental orders and surrogacy law

If you have chosen to create a family with the assistance of a surrogate, it’s essential to take steps after the birth to acquire parental rights. A parental order grants legal status on the intended parents, thereby extinguishing the rights of the surrogate parent(s).

To qualify as an applicant for a parental order, you need to be one of the following:

  • Married/civil partnered couple – if you are married and at least one of you is the child’s biological parent then you can apply to the court for a parental order. Parental orders extinguish the parental status of the surrogate mother and, where appropriate, her husband or civil partner and grant full parental status and parental responsibility on both of you as intended parents.       As intended parents you should apply for a parental order regardless of whether the surrogate is married or not because the intended mother (or non-biological father) will not have full recognition as a parent unless you obtain a parental order. Once a parental order is made, a new birth certificate is issued naming you, the intended parents, which replaces the child’s original birth certificate and secures your position as parents
  • Cohabiting couple in an enduring relationship – if you, as intended parents, are two people living together as partners in an enduring relationship, you will also be able to apply for a parental order providing at least one of you has a genetic link to the child.

If you are a single person, the current law still doesn’t permit you to apply for a parental order, instead you will need to seek an alternative order, e.g. residence order, special guardianship order, adoption order.

To obtain a parental order, you must show the following:

  • That you are both over the age of 18 and one or both of you is domiciled in the UK
  • That one or both of you is a biological parent of your child
  • That you are married, are civil partners or are two people who are living together as partners in an enduring relationship)
  • That your child’s home is with you
  • That the conception took place artificially (which can include home insemination)
  • That the surrogate mother (and partner where appropriate) has fully and freely given       consent to making the order
  • That no more than reasonable expenses have been paid.       What constitutes reasonable expenses depends on the facts of each particular case and legal advice should be sought for clarification

What if a parental order is not available?

If any of the conditions specified above can’t be satisfied then it won’t be possible to obtain a parental order. The next steps involve an application to the court for adoption, special guardianship or a child arrangements order and we recommend you get specialist legal advice to help you with the process.

Why should we apply for a parental order?

If the intended father is the legal father, he will be permitted to care for his child. However, the status of his partner (either the intended mother or the non-biological father) will be left unsecured. This could have many serious consequences if no action is taken.

If neither of you are a legal parent, then the situation is even more critical as neither of you will have any legal authority to care for your child or to make decisions about your child’s welfare. This includes consent to immunisations and medical treatment. Also, if you do not involve social services to oversee the situation, you could be seen as committing a criminal offence in caring for your child.

To avoid legal issues in the future, we advise that you take action early on and seek appropriate legal advice.

Our specialist team are available to help and support you every step of the way to ensure your application to the court is comprehensive and fully prepared, so that the process runs smoothly with a successful outcome.

Contact our Family Law specialists

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