When considering surrogacy, it is essential to be aware of the need to obtain a Parental Order. Under English Law, the surrogate mother is considered the legal mother of any child born. If the surrogate mother has a husband, he would usually be treated as the legal father. This leaves the child's intended parents in a precarious position as they do not have a legal parental status over the child until they take appropriate legal steps.
The intended parents are required to apply for a Parental Order to obtain parental rights and remove the surrogate's parental rights (and her husband). It is necessary to make the application for a Parental Order within six months of the child's birth. The surrogate mother and her husband are required to consent to the Order in writing, but they can only provide this consent six weeks after the child is born.
The legal requirements for applying for a Parental Order under Section 54 Human Fertilisation and Embryology Act 2008 include:
(1) On an application made by two people ("the applicants"), the court may make an order providing for a child to be treated in law as the child of the applicants if—
(a) the child has been carried by a woman who is not one of the applicants, as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination.
(b) the gametes of at least one of the applicants were used to bring about the creation of the embryo, and
(c) the conditions in subsections (2) are satisfied.
(2) The applicants must be—
(a) husband and wife,
(b) civil partners of each other, or
(c) two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other.
(3) Except in a case falling within subsection (11), the applicants must apply for the Order during the period of 6 months, beginning with the day on which the child is born.
(4) At the time of the application and the making of the Order—
(a) the child's home must be with the applicants, and
(b) either or both of the applicants must be domiciled in the United Kingdom or in the Channel Islands or the Isle of Man.
(5) At the time of the making of the Order, both the applicants must have attained the age of 18.
The process typically includes two court hearings and the involvement of a special Parental Order Reporter from Cafcass (Children and Family Court Advisory and Support Service), who will interview both the intended parents and the surrogate parents. The Cafcass reporter will then make a recommendation to the court.
A recent article in the Sunday Times highlights the difficulties shared by intended parents who are experiencing delays obtaining their Parental Orders due to Court backlogs caused by the coronavirus pandemic. These delays are leaving intended parents in legal limbo. Their children are living with them, but they do not have any parental rights for their children until the Parental Order has been granted. They are parents by nature but not name.
Besides applying for a Parental Order, there is no alternative method of obtaining legal rights for children born by surrogacy in the UK. Commercial surrogacy arrangements are not legally enforceable, and the current delays in obtaining a Parental Order may leave intended parents feeling vulnerable. It is more important than ever to get legal advice at an early stage so that court applications can be drafted in advance and are ready to submit at the earliest opportunity.