Parental Orders and Surrogacy – the final step to parenthood

A huge percentage increase in the number of parental orders under the Human Fertilisation and Embryology Act suggests that surrogacy is on the increase – or could simply indicate that, more couples are recognising what the best Family Solicitors know only full well – that it is vital to obtain a parental order following surrogacy.

Statistics show dramatic rise in parental orders

Cafcass figures show that since 2012-2013, the number of parental orders applied for under the Human Fertilisation and Embryology Act has almost doubled. There were 284 applications for parental orders in surrogacy situations in 2017-2018, compared to only 152 in the year 2012-2013. While top London Family Solicitors welcome the news that more couples are choosing to take the final step in their surrogacy arrangement, there remains a concern that a significant number of those who become parents through surrogacy do not make this crucial application.

Parental orders under the Human Fertilisation and Embryology Act

As the best family solicitors in London will advise, under UK law, when a child is born under a surrogacy arrangement, it is the birth mother, not the intended mother, who is named on the birth certificate. If the birth mother is married, her spouse may be named as the father, even where there is no genetic link to the child. The intended parents will not have parental responsibility unless they complete the final step in any surrogacy arrangement in the UK - to obtain a parental order under section 45 Human Fertilisation and Embryology Act.

The process of applying for a parental order effectively removes parental responsibility from the birth mother, and if appropriate her partner, and transfers it to the ‘intended’ parents of the child – the couple who have sought out the surrogate in order to conceive. As an aside, a single parent who uses a surrogate to have a child is not currently able to apply for a parental order and must regularise parental responsibility for his or her child through adoption or a child arrangements order. This situation is due to change, after it was declared incompatible with the European Convention on Human Rights but has not yet done so.

Without a parental order to obtain parental responsibility for the surrogate child, the legal parents remain the birth mother and, potentially, her partner. This can cause huge problems later on – for example it may be impossible to obtain a UK passport for the child. Throughout the day to day life of a child, until he or she reaches majority, there are many decisions that should be taken by the person or people with parental responsibility for that child. With no parental order in place, the intended parents have no legal right to take those decisions. For couples opting to enter into surrogacy arrangements abroad, the lack of parental responsibility may cause significant complications when they seek to return to the UK. The UK Immigration rules contain strict requirements relating to nationality so anyone considering an inter-country surrogacy should consult with good Family Solicitors with who are also experienced Immigration lawyers.

Applying for a parental order

Given the critical importance of obtaining a parental order in a surrogacy situation, consulting some of the top family solicitors in London is a worthwhile investment. As might be expected in an application of this type, the application for a parental order must be supported by a significant amount of documentation, to prove that the criteria for granting a parental order as set out in s.54 of the Human Fertilisation and Embryology Act are met. The documentation required includes

- Evidence of the couple applying for parental responsibility’s relationship. This could be the marriage or civil partnership certificate or other evidence of the relationship

- DNA evidence or information form the clinic involved in the IVF procedure

- Information about when the child was handed into the care of the intended parents, and where they have been living together with the child since then

- The birth certificates of the intended parents and of the child

- Details of the consent of the surrogate handing the child over to the intended parents (a form A101A)

- Financial information including bank statements and receipts – remember that in the UK, payment can only be made for a surrogate’s reasonable expenses.

Cafcass advise keeping as detailed records as possible – communications with the clinic, with the surrogate mother, details of payments etc - with as much supporting documentation as is available, in order to be open and transparent throughout the application for the parental order.

Surrogacy is a big step to take, so understanding the legal implications of the process is vital to ensure that this aspect is covered off and the family’s future is secured.

OTS Solicitors offer advice and assistance in all areas of family law including surrogacy and parental orders. To discuss any aspect of your family’s situation in confidence with Behzad Sharmin, an experienced family lawyer, please call 0203 959 9123 to book your appointment.