Parenthood and parental orders (surrogacy law)

boy with hand held wind

UK law on parenthood after surrogacy applies whether the child is born in the UK or elsewhere (and irrespective of any foreign court order or birth certificate which records the intended parent or parents as the legal parents).

The law at birth

Under UK law, the woman who gives birth (the surrogate) is the legal mother.

If the surrogate is married when she conceives, her husband is the legal father unless it is shown that he did not consent to the conception (although this is not easy to prove, and a spouse can't simply 'opt out' of being the other parent). The same rule makes the surrogate's wife or civil partner the other legal parent if she is in a same-sex relationship.

If the surrogate is unmarried, in most cases the intended father will be the legal father (assuming he is the biological father). However, if conception takes place at a fertility clinic in the UK someone else can be nominated as the second legal parent, for example an intended mother or a non-biological father (find out more about the rules at UK fertility clinics).

If the child is born in England or Wales, the surrogate is responsible for registering the birth and will be registered as the mother (together with her spouse/ civil partner if he or she is the other legal parent). The child can nonetheless be given the intended parents' surname if everyone agrees. If the surrogate is not married or in a civil partnership, then the other legal parent (one of the intended parents) can be registered as the father or second parent, provided he/ she attends the birth registration. If that intended parent is not the biological father, he/she will need to produce the HFEA forms signed before conception to nominate him/her as a parent.

Parental orders

The UK legal solution for resolving parenthood in surrogacy cases is a parental order. This is a court order which makes the intended parent or parents the legal parents of the child and permanently extinguishes the parenthood of the surrogate and her spouse. Once a parental order is made, the birth will be re-registered to record the intended parent/s as the legal parent/s, and a new birth certificate will be issued. The original birth certificate will be sealed as part of the Parental Order Register and will be accessible only to the child once he or she is over 18 (in a similar way to an adopted child).

What the court assesses

To obtain a parental order, the intended parent/s must satisfy the family court that the order is in their child's best interests (welfare being the court's paramount consideration) and that they meet all the criteria, which are:

The conception must have taken place by embryo transfer or artificial insemination, and the child must have been carried by a surrogate
The intended parent (or if a couple at least one of them) must be the child's biological parent
If the intended parents are applying as a couple they must be married, civil partners or living together as partners in an enduring family relationship. Single parents have been able to apply since 3 January 2019
The intended parents must submit the application to the court within the six months after their child is born (although in exceptional cases the court can extend this, and single parents who could not apply until 3 January 2019 have a six month window until 2 July 2019 to make retrospective applications)
At the date they apply and the date the order is made the child must have his or her home with the intended parent/s
At the date they apply and the date of the order, the intended parent (or if applying as a couple at least one of them) must be domiciled in a part of the United Kingdom, Channel Islands or Isle of Man
The intended parent/s must be over 18 when the order is made
The surrogate and her spouse must fully and freely consent to the order (unless they cannot be found or are incapable of giving consent). The surrogate cannot validly consent until the child is six weeks old
No more than reasonable expenses must have been paid, or the court must agree to 'authorise' the payments retrospectively.

The court process

Intended parents apply for a parental order by completing court Form C51 and submitting it to their local family court (or the Central Family Court in London in international cases). The court will 'issue' (stamp) the application and should send a copy, together with a Form C52 (acknowledgment) to the intended parents. The intended parents must give this to their surrogate (and her spouse), who should sign and return the C52 Form to the court.

The court will appoint a parental order reporter (from CAFCASS). He or she will meet with the intended parent/s and (if possible, if she is based in the UK) the surrogate and her partner. The reporter then writes a report for the court making a recommendation about whether a parental order should be made. Read more about parental order reporters here.

Straightforward UK surrogacy cases are dealt with at the junior level of the family court. There will be one or two informal court hearings, and typically little evidence is required. If there are any complicating or international issues, the application will be heard by a High Court judge. The procedure in the High Court is significantly more formal, and extensive evidence and legal argument is usually required.

Do I need a parental order?

A parental order secures the legal status of intended parents under UK law, and is needed even if the parents are already named on their child's foreign birth certificate. Without a parental order, one or both of the intended parents will not be a legal parent in the UK which means:

The parent/s not having legal authority to make basic decisions about their child's medical care and education
Problems with inheritance and pension rights
Legal complications if the parents separate or divorce or one wishes to move abroad
Difficulty obtaining or renewing a British passport
Social services involvement (and in some cases a criminal offence for parents who fail to notify social services about their situation)
Needing to find and involve the surrogate in future key decisions and any legal proceedings relating to the child

In 2013, Mrs Justice Theis (one of the High Court's specialist surrogacy judges) said: "The legal relationship between children born as a result of surrogacy arrangements and their intended parents is not on a secure legal footing without [a UK parental order] being made. That can have long term legal consequences for the children... The message needs to go out loud and clear to encourage parental order applications to be made in respect of children born as a result of international surrogacy agreements, and for them to be made promptly."

What if a parental order is not available?

An adoption order is the closest alternative to a parental order. Like a parental order, it extinguishes the surrogate parents’ responsibilities and gives permanent parental status to the intended parents. However, the law and process is often complicated (particularly in international situations) because adoption law was not designed for surrogacy. Other options include a child arrangements order (which confers parental responsibility but without permanently reassigning parenthood) or a special guardianship order (which is a middle solution). Find out more about acquiring parental responsibility.

Have we answered your question? Would you like advice on your personal circumstances?

Email us at hello@ngalaw.co.uk or call on 020 3701 5915 and we will explain how we can help.