Under UK Law, the surrogate mother is the legal mother of the child and, if she is married or has entered into a civil partnership, then her spouse or civil partner will be regarded as the second legal parent of the child (unless it can be proved that he / she didn’t consent to the surrogacy arrangement). This is the case even if the intended parents are the biological parents and even if the child has been born abroad and the intended parents are already named on their child’s foreign birth certificate.
In order to transfer legal parentage, the intended parents must apply for a Parental Order. As well as transferring legal parentage to the intended parents, a Parental Order also permanently extinguishes the legal parentage of the surrogate and her spouse. The child’s birth will be re-registered to record both intended parents as the legal parents and a new birth certificate will be issued. The original birth certificate will be sealed as part of the Parental Order Register and will be available only to the child once he or she is over 18.
The Court can only make a Parental Order if the Court is satisfied that the Order is in the child’s best interests and provided certain criteria are met (set out under s54 HEFA 2008), which are as follows:
- The child must be born to a surrogate using assisted reproduction (artificial insemination).
- One or both of the intended parents must be the child’s biological parent.
- The intended parents must be either married or in a civil partnership or living as partners in an ‘enduring family relationship’ (the government has however now sent a draft remedial order to Parliament to change the law to enable single parents to be able to apply too).
- The application for the Parental Order must be made within 6 months of the child being born (although in certain cases, the Court can extend this time limit).
- At the time of the application and the making of a Parental Order, the child’s home must be with the applicants, and either or both of the applicants must be domiciled in the United Kingdom or in the Channel Islands or the Isle of Man.
- The intended parents must both be over 18 when the Order is made.
- The Court must be satisfied that the surrogate and her spouse (if applicable) freely, and with full understanding of what is involved, agreed unconditionally to the making of the Parental Order. The surrogate cannot give valid consent until the child is six weeks old.
- The Court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) have been given or received by either of the applicants. Alternatively, the Court must agree to ‘authorise’ the payments retrospectively.
See our separate blog on surrogacy which outlines the court process for applying for a Parental Order.
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