A Parental Order is an order that secures the legal status of the intended parents of a child born of a surrogate mother. A Parental Order transfers parental responsibility from the surrogate mother to the intended parents. A Parental Order can only be applied for once the child is born.
Under English law the birth mother is legally the child’s legal mother and if she has a husband he will be the child’s legal father. The intended father will only have legal status for the child if he has a biological link with the child and the biological mother is not married. The intended mother has no parental rights in law with the child. To alter this legal position the surrogate parents will need to apply for a parental order.
Even if the intended parents are named on a surrogate child’s birth certificate that was issued abroad, in the UK, in the absence of a Parental Order the intended parents will not be recognised as the legal parents of the child. It is therefore extremely important that the intended parents of a surrogate child apply to the Court for a Parental Order.
Plan Ahead
If you are planning to have a child through a surrogacy arrangement, it is very important that you plan ahead and take early legal advice. This is particularly important if you are planning to use a surrogate mother who lives abroad. Any Orders made by a Court abroad transferring the legal parentage of a child to you and your partner will not be recognised in the UK. Regardless of any Orders obtained abroad, under English law the surrogate mother will still be treated as your child’s legal mother. As mentioned above, if the surrogate mother is married, then her husband will be treated as your child’s father.
You will also need to think very carefully about the immigration status of your child particularly if both parents do not have British citizenship. Even if you both have British nationality it is important to take specialist advice to ensure that your child will be given permission to enter the UK. Our family lawyers can put you in touch with our immigration team who can advise you on any immigration aspects of your case.
Who can apply?
You can apply for a Parental Order with a partner or on your own. If you are applying with someone else, then you must be one of the following:
- Married;
- Civil partners; or
- Living as partners.
What is the criteria for applying for a surrogacy parental order?
In order to apply for a Parental Order, one of you must be genetically related to the child i.e. one of you must be the egg or sperm donor. If you are applying as an individual, you must be genetically related to the child i.e. you must be the egg or sperm donor.
You must make your application within 6 months of the child’s birth, although in certain exceptional circumstances, the Court will grant Parental Orders outside that strict six month limit. You must also:
- Live with the child;
- Reside permanently in either the UK, Channel Islands or Isle of Man;
- Be at least 18 years old.
When will the Court make a Parental Order?
The Court must be satisfied that the surrogate mother and her husband or civil partner, if there is one, have freely consented to the making of the Parental Order without any conditions. The surrogate mother and any husband or civil partner must provide their consent at least six weeks after the birth of the child.
The Court must also be satisfied that there has been no payment made to the surrogate mother or any husband other than reasonable expenses. Commercial surrogacy arrangements are not allowed in the UK.
When considering whether to make a Parental Order the paramount consideration for the Court will be the child’s welfare throughout the child’s life. A Parental Order reporter will be appointed by the Court. The Parental Order reporter will meet with the intended parents along with the surrogate mother and any husband and produce a report for the Court with a recommendation as to whether a Parental Order should be made.
What happens to the child’s birth certificate?
Upon the making of a Parental Order, a birth certificate can be re-issued to the child with the name of the child’s parents as set out on the Parental Order.
What is the effect of a Parental Order?
The effect of the Order will be to remove parental responsibility permanently from the surrogate mother and her husband, if any.
