Rachael Shearmur
Posted on 10 Aug 2018

Surrogacy Part 3 - Making an application for a parental order

In the last of this three part piece on surrogacy, we examine the requirements for making an application for a parental order. This is the order which gives the intended parents the full legal status as parents of a child born to a surrogate mother.

What are Parental orders?

In England and Wales, the procedure for establishing the legal parenthood of the intended parents is for those parents to make an application for what is known as a “parental order”. Such an order, if made by the court, establishes the intended parents as the legal parents of the child and permanently extinguishes the parentage of the surrogate mother and her partner if she is married or in a civil partnership.

The making of a parental order enables the intended parents (by then the legal parents) to re-register the birth of the child to record both the parents as the legal parents and a fresh birth certificate will be issued. The original birth certificate will be sealed as part of the making of the parental order. Only the child, once he or she is over the age of 18 years, will subsequently have access to the original birth certificate.

What does court takes into account when considering whether to make a parental order?

The overriding consideration will be whether the making of a parental order in favour of the intended parents is in the long term (i.e. for the rest of his/her life) interests of the child).

In addition the court must be satisfied that all the conditions set down by law are met. These conditions are:

  • The conception must have taken place by embryo transfer or artificial insemination and the child must have been carried by a surrogate
  • One or both of the intended parents must be the child’s biological parent and both must be over the age of 18 years
  • The intended parents must be married, in a civil partnership or in an enduring family relationship (although the government has stated that it intends to extend the option for applying for such an order to a single parent)
  • The application for the parental order must be made to the court within 6 months of the birth of the child, although the time limit can be extended in exceptional circumstances e.g. the grave illness of the child at or shortly after birth
  • When the application is made to the court and at the time it is being heard, the child must have his/her home with the intended parents
  • At least one of the intended parents must be domiciled in the United Kingdom
  • The surrogate mother and her married or civil partner must both consent to the making of the order and such consent cannot be given until at least six weeks after the birth of the child
  • Only reasonable expenses must have been paid to the surrogate mother and/or her married or civil partner.

The effects of a parental order

In addition to establishing the legal parentage of the child, such an order gives to the parents and to the child:

  • The legal right for the parents to make important decisions on behalf of the child, as if they were the natural parents e.g. regarding health and welfare, schooling, type of parenting etc.
  • Security in relation to inheritance and other financial issues
  • Protection in the event of separation or divorce
  • If applicable, the right to obtain a passport
  • The obligation to parent the child to a reasonable standard and to ensure that the child has an education

What is the legal position if a parental order is not available?

As indicated above, there are conditions which have to be met before a parental order can be made, including importantly, that the intended parents must be married or in a civil partnership or an established family relationship. If those conditions are not met, it would still be possible for an intended parent to apply either for an adoption order or even an order that the child should live with him/her. In the latter case, however, even if the order is granted, the child’s legal mother would remain the surrogate mother.

Conclusion

It can be seen that the whole issue of arranging surrogacy and the placing of a child after birth are complex. These are delicate matters which have to be approached with great care for they involve decision of the greatest importance in the life of a child in a way that are likely to have a lifetime’s significance.

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 in Exeter +44 (0)1392 688688 oe Sidmouth +44 (0)1395 512515.