Rachael Shearmur
Posted on 3 Aug 2018

Surrogacy Part 2 - After the birth

In Part 1, the legal position of the surrogate mother and the intended parents at the time of conception and up to the birth of the child was considered. In this second part, we examine the situation at and immediately after the birth of the child.

Under the law in England and Wales, the woman who gives birth to a child, whether or not through surrogacy, is the legal mother. If that woman is married when she conceives, her husband is the legal father of the child, unless the husband can prove that he did not consent to the conception by surrogacy. The same assumption about parentage is made if the surrogate mother is in a same sex marriage or civil partnership, namely that the same sex partner of the mother is regarded as being the legal other parent of the surrogate child.

If the surrogate mother is not married or in a civil partnership, it is the biological father who will be regarded as the other legal parent. If, however, conception takes place at a fertility clinic and the identity of the biological sperm donor is not known, it is legally possible for someone else to be nominated as the second legal parent. This might be (and very frequently is) the intended mother or father.

Registration of the birth

In England and Wales, the law requires the birth of a child to be registered at the office of the local Registrar of Births, Marriages and Deaths within 42 days. In the case of a child born to a surrogate mother, it is that person who is responsible for completing the registration. The surrogate mother will be registered as the legal mother of the child and the other parent will be the surrogate’s married or civil partner, if there is one.

If the surrogate is not married, then a second legal parent can also be registered in that capacity, provided that person attends the Registrar at the time the birth is registered. This requirement is obviously intended to prevent a person being named as a legal parent of the new-born child without his or her consent. If that second named parent is not the biological father of the child, then it is necessary for the consent form signed before conception to nominate him/her as a legal parent.

Naming of the child

At registration, the child can be given the surname of the surrogate mother (which may also be the surname of the surrogate mother’s married or civil partner). Alternatively, the child may be given the surname of the intended parent(s) if everyone agrees. The question of the naming of the child (relating to both surname and forenames) is a topic that, ideally, will have been dealt with in the surrogacy agreement referred to in Part 1 of these articles.

The timing of the placement of the child with the intended parent(s)

This step, at the very heart of the surrogacy process, should have been agreed at the time of the making of the surrogacy agreement. Such agreements usually stipulate that the child will be placed into the care of the intended parent(s) within a specified time, often 36 or 48 hours after birth. An immediate handover of the child is sometimes agreed. The received wisdom is that a longer delay before the child is placed with the intended parent(s) is not in the best interests of the child in terms of the establishment of the essential bond between the child and the intended parent(s).

It is rare but it sometimes happens that, even when the surrogate mother has agreed in advance that the child is to be placed with the intended parent(s), she then changes her mind and refuses to part with the child. In that event, the court will, if asked to do so, have to make a decision, based on what it regards as being in the best interests of the child.

In part 3 we shall examine the making of an application for a parental order.

If you or anyone you know, are affected by the issues raised above and would like more information or some preliminary, confidential advice, please contact one of our experienced experts in our family team by e-mail or telephone. Exeter +44 (0)1392 688688 or Sidmouth +44 (0)1395 512515