What is surrogacy?

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With there now being greater awareness and acceptance of surrogacy and a development in reproductive technology, surrogacy is becoming an increasingly popular route for starting a family. Surrogacy continues to capture the headlines with the likes of Priyanka Chopra, Khloe Kardashian and Amber Heard having their children via this route.

To coincide with National Surrogacy Week 2022, in this blog I aim to shed some light on surrogacy in England and Wales, and the process of obtaining a Parental Order.

What is surrogacy?

Surrogacy is a practice where a woman will carry a child for another person with the intent that the child is handed over to the intended parents at birth. The child will then be raised by the intended parents.

A surrogacy agreement between intended parents and a surrogate (and their spouse or partner) is not a legally binding or enforceable agreement. It is simply a statement of intention about how the surrogacy arrangement will work in practice. There are significant risks associated with surrogacy, because surrogacy agreements are non-binding.

What are the types of surrogacy?

Gestational surrogacy: The surrogate is implanted with an egg (either from the intended mother or from a third party (i.e. a donor egg)) that is fertilised by the sperm from the intended father. The surrogate is therefore not biologically linked to the child but is the gestational mother.

Partial surrogacy:  The surrogate is artificially inseminated with the sperm from the intended father. The surrogate therefore uses her egg meaning she is biologically linked to the child as well as gestationally linked.

Where can I find out more information about surrogacy?

Intended parents can join one of the four main UK surrogacy organisations, which provide more information:

  • Childlessness Overcome Through Surrogacy (COTS)
  • Surrogacy UK
  • Brilliant Beginnings
  • My Surrogacy Journey

These organisations are able to provide advice about how to find a surrogate. Law firms such as Family Law Partners cannot and must not assist in arranging surrogacy as this is strictly prohibited. However, we can advise ‘after the event’, to ensure the legal position in respect of ‘parenthood’ is correct (i.e. that the intended parents are established as the legal parents of the child and are the only ones with parental responsibility for them).

What is a Parental Order?

The surrogate who gives birth to the child is recognised as the legal parent of that child at the outset.

If the surrogate is married or has entered a civil partnership, then her spouse or civil partner will be the second legal parent of the child, unless it can be proved that they did not consent to the surrogacy arrangement.

Legal parenthood can be transferred from the surrogate to the intended parents by way of a Parental Order.

This Order is paramount as it will permanently transfer legal parentage from the surrogate/her spouse or civil partner to the intended parents. The Order grants Parental Responsibility to the intended parents and extinguishes the parental responsibility that any person had before the Order.

A Parental Order not only has a transformative effect on the legal relationship between the child and the applicant(s), but also a life-changing psychological and emotional impact on the relationship between parent and child.

Statistics from the Ministry of Justice show an increase in the number of Parental Orders being granted, from 117 in 2011 to 413 in 2020.

How do I get a Parental Order?

Intended parents will need to apply to the Court for a Parental Order. The criteria for a Parental Order are as follows:

  • The intended parents must apply within 6 months of the birth of the child
  • The intended parents must be over the age of 18
  • The intended parents must be married/civil partners/living as partners (individual applicants are also able to apply)
  • The surrogate (and her partner) must give consent (no earlier than 6 weeks after the birth of the baby)
  • The child must be born to a surrogate and conceived artificially
  • One of the intended parents must be genetically related to the child (i.e. be the egg or sperm donor)
  • The child must be living with the intended parents
  • The intended parents must reside permanently in the UK, Channel Islands of Isle of Man
  • The surrogate should be paid no more than reasonable expenses, unless authorised by the Court

The Court Process

After the applicant has applied to court and paid the relevant fee of £232, the Court will then set a date for a first directions hearing and will issue an acknowledgement form that is given to the surrogate. The surrogate should then sign and return this form to the Court to acknowledge that they are aware of the proceedings.

The applicant(s) will then be asked to file necessary Witness Statements.

The Court will appoint a Parental Order reporter from CAFCASS (Children and Family Court Advisory and Support Service), who are fully qualified social workers, to help it decide whether the Order is in the best interests of the child concerned.

At the initial directions hearing, the Court will usually make directions and set a date for the final hearing (if needed).

If a Final Hearing does go ahead, the Judge will decide whether a Parental Order should be made. A Parental Order will have a permanent status. The child’s birth will then be re-registered, and a new birth certificate will be issued.

If you would like to find out more and seek further advice, our expert family lawyers will be more than happy to assist you.

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Nina Gohil is a Paralegal in our London team. For a confidential, no-obligation conversation with one of our surrogacy experts please contact us.

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