What is a parental order?

A parental order is the post birth legal solution for surrogacy in the UK.  It gives intended parents the legal rights and responsibilities they need to make their child a legal member of their family and care for them in the UK.

A parental order reassigns legal parenthood and parental responsibility from a surrogate mother (and her spouse or civil partner if applicable) to a child's intended parents and extinguishes the legal rights and responsibilities of the surrogate parent/s for the child for English legal purposes.

What is meant by legal parenthood?

Legal parenthood gives a legal connection between a parent and a child, which affects matters such as financial responsibility for a child, the child's nationality, inheritance rights and the child's legal identity.

A legal parent may not automatically obtain parental responsibility for a child.

What is meant by parental responsibility?

A person who holds parental responsibility for a child has the legal rights and responsibilities to make decisions about a child's care and upbringing and to safeguard his or her welfare, to include consent to medical treatment and education.

A child's legal mother automatically obtains legal parental responsibility for a child.  Whether the child's father or other parent has parental responsibility for the child is dependent upon various factors including their marital status, what is recorded on the child's birth certificate and any orders granted by the English Family Court.

What are the legal implications if I do not obtain a parental order?

There are a number of serious legal implications if intended parents do not obtain a parental order for their surrogate born child, to include (subject to eligibility and in the absence of other family court orders):

  • One or both intended parents will lack legal parenthood for their surrogate born child.
  • One or both intended parents will lack parental responsibility for their surrogate born child.
  • The surrogate mother (and her spouse or civil partner) will retain legal parenthood for the surrogate born child.
  • The surrogate mother (and her spouse or civil partner) will retain parental responsibility for the surrogate born child.
  • Intended parents may have different legal status for their surrogate born child.
  • One or both intended parents will lack automatic legal status to bring or defend legal proceedings for a surrogate born child.
  • A surrogate born child will lack an automatic right of inheritance from one or both intended parents.
  • A surrogate born child will retain a right of inheritance from his or her surrogate mother (and her spouse or civil partner).
  • A surrogate born child's legal identity as the child of his or her intended parents will be affected.
  • One or both intended parents may not be financially responsible for their surrogate born child.
  • A surrogate mother (and her spouse or civil partner) will remain financially responsible for the surrogate born child.
  • A surrogate born child will lack a British birth certificate naming both intended parents as his or her parents.

The failure to obtain a parental order can leave intended parents, surrogate born children and surrogate mothers (and their spouses or civil partners) in a legally unresolved position.  This can create complex legal issues, difficulties and disputes, particularly in the event of:

  • Death of one or both intended parents.
  • Breakdown of the intended parents' relationship and disputes over the care and upbringing of a surrogate born child.
  • A dispute arising between intended parents and a surrogate mother (and her spouse or civil partner) concerning a surrogate born child.

What are the legal criteria for a parental order?

Intended parents must meet specific legal criteria in order to be eligible to apply to the English Family Court and obtain a parental order for their surrogate born child, namely:

  • Intended parents must be over 18 years of age
  • Intended parents must be married, in civil partnership or in an enduring family relationship with their partner
  • One or both intended parents must be domiciled in a part of the UK
  • The gametes (eggs or sperm) of one or both intended parents must be used to conceive the child
  • Intended parents must apply for a parental order within six months of the child's birth
  • The child must be in the care of the intended parents at the time of issue of a parental order application and at the time the order is granted 
  • The surrogate mother (and her spouse or civil partner) must consent fully and freely to the grant of a parental order, with the surrogate mother's consent not being valid until a minimum of 6 weeks after the birth
  • Intended parents must pay no more than 'reasonable pregnancy related expenses' to a surrogate mother unless the English Family Court authorises a commercial payment

For further information or assistance please contact Louisa Ghevaert, Partner and Head of the Fertility and Parenting Team at Michelmores, by email louisa.ghevaert@michelmores.com or call +44(0)207 7886382.

 

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