What happens when parents through surrogacy separate?

Under UK law, parents through surrogacy are not immediately recognised as legal parents of their children (whether their children are born in the UK or via an overseas surrogacy arrangement).  They become legal parents when the UK family court makes a parental order, which might be some months after the birth. Find out more about parental orders.  This means that how the law applies if you cannot agree arrangements for your children is different depending on whether a parental order has been made.

What happens if we separate after our parental order is granted?

After a parental order has been granted by the UK family court, you will be the legal parents of your children and you will share parental responsibility for them.  If you separate or divorce, the law is just the same for you as it is for any other parents breaking up.

In the case of G v G (2011) a father through surrogacy (who wished to enhance his own position in a separation) attempted to have a parental order overturned on the basis of procedural irregularities and the fact that his wife had deceived him about her intent to leave him. The court decided that a parental order, once made, was final and permanent.

You will be expected to agree care arrangements for your children – who they should live with and what contact they should have with the other parent if you don’t live together.  You will also be expected to exercise your parental responsibility by agreement, and so make consensus decisions about key issues like schooling, medical care and religion. If you can’t agree, then you should consider mediation or get legal advice to try and help you.  Failing that, either of you can apply to the family court to make a decision.  You will also both be financially responsible for your children.

The surrogacy background and who is a biological parent should be irrelevant (although in reality we know that it is something which may need to be explained to the court, and can be attempted to be as a weapon where a separation is acrimonious, so care and specialist help may be needed).  Same-sex parents should also be treated in exactly the same way as different-sex parents (and trans parents should be treated in the same way as cisgender parents).  The right outcome for your family will depend on how things have been managed to date, and whether your children have a primary carer or whether you share care more equally.

What happens if we separate without a parental order?

This is a much more complicated position, but the court may allow you to seek a parental order before you formally divorce or separate, even if you have missed the usual six month deadline for applying. Otherwise, one or both of you will not legally be a parent of your children.

In the case of JP v LP (2014), the intended parents separated after the birth and missed the deadline to apply for a parental order. This became clear in the course of proceedings concerning a dispute about arrangements for their child  and the result was ultimately that the child was made a ward of the court, with the surrogate remaining the legal mother, although with the intended parents retaining care.  However, in Re X (2014) the President of the Family Division made a parental order in favour of parents who had separated and then reconciled, describing the 6 month deadline as 'nonsensical'.

The law on this is still evolving, but without a parental order there will be complex issues around your status, financial responsibility and right to make court applications in the context of a separation.  One of you may be in a better position legally than the other, even if that makes no logical sense, and your surrogate may need to be involved too (even if she is based overseas).  That said, the court is always keen to protect children and will do its best to apply child-focused welfare principles which protect a child’s right to maintain a relationship with both parents if that relationship is already established.

In cases where the separation takes place before the child is born (so that one or both parents has not yet had the chance to establish a relationship with their child) things can be even more difficult for the non-resident parent.

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.