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Surrogacy and Parental Orders - A Guide for the Modern Family

View profile for Jonathan Whettingsteel
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Surrogacy and Parental Orders - A Guide for the Modern Family

The needs of families and their composition continues to change, as does the technology to support them. As a result, the law supporting these families also needs to change.

There has been a continued and steady increase in the number of applications being made to the court for a Parental Order, legally recognising the parents of a child born to a surrogate.

Surrogacy is becoming more common for parties who want to become parents, providing the opportunity to those who have trouble conceiving and / or carrying a child to term, or in same sex relationships. Going forward, it may also provide the opportunity for those not in a relationship to also have a child (see the case of Re Z below).

The law around surrogacy and Parental Orders is governed by the Human Fertilisation and Embryology Act 2008.

What are the different types of surrogacy?

There are two different types of surrogate:

  • Gestational Surrogate – Where the embryo is created using IVF with the eggs and sperm of the intended parents. The embryo is implanted into the womb of the surrogate.
  • Traditional Surrogate – Where the sperm of the intended Father or donor is used to fertilise the egg of the surrogate.

A gestational surrogate will have no biological link to the child, whereas the traditional surrogate will have a genetic / biological link.

Who is the ‘legal parent’ in surrogacy?

Irrespective of the method of surrogacy used, the surrogate will be the ‘legal parent’ of the child and hold Parental Responsibility, even if surrogacy was via gestational surrogacy, meaning they hold no biological link to the child. It is important to note the surrogate’s partner will also be considered the child’s ‘legal parent’ if they are married or in a civil partnership.

Legal Parentage is different to Parental Responsibility. Once a Parental Order is made, this ends the ‘legal parent’ status of the birth mother and their partner and makes the recipients the legal parents and recognised as the parents of the child from birth. This gives them rights above and beyond Parental Responsibility, and effectively recognises the child’s life story and family identity.

How do you make a Parental Order?

The criteria and requirements for the making of a Parental Order are covered in Section 54 of the Human Fertilisation and Embryology Act 2008.

This includes the requirements:

  • Any application must be made within six months of birth;
  • There must be two applicants, who must be husband and wife, civil partners, or living as partners in an ‘enduring family relationship’;
  • At the time of the application, the child’s home must be with the Applicants;
  • Either or both of the Applicants must be domiciled in the United Kingdom, Chanel Islands or Isle of Man;
  • The Applicants must be over 18 years of age; and
  • No money can be given for the surrogacy arrangement, apart from ‘reasonable incurred’ expenses. (The Human Fertilisation and Embryology Act 1985 making it illegal to enter into a surrogacy arrangement for commercial / financial gain.)
Parental Order court case studies

Although there is a requirement that any application must be issued within six months of the birth of the child, there has been exceptions.

In the case of Re X (A Child) (Surrogacy: Time limit) [2014] EWHC 3135 (Fam), Sir James Munby the former President of the Family Division considered the intentions of Parliament in setting the six month time limit and granted an application made outside of this timeframe. This required determination that this was in the best interests of the child and Parliament could not have intended that a party would be barred forever in applying for a Parental Order. It also argued that the time limit restrictions was to the detriment of the child.

Although this was the decision in this case, it is best not to chance your luck and any application should be made within the six month statutory timeframe.

The requirement for there to be two Applicants has also come under review with the case of Re Z (no.2) [2016] EWHC 1191 (Fam) which resulted in a Declaration of Incompatibility being made where a sole father was applying for a Parental Order.

It was held that the requirement for there to be two applicants was a breach of Article 14 of the Human Rights Act, being the right to be protected from discrimination. It is expected this requirement will be reviewed in the coming years.

In these examples, the court have expressed the importance of a Parental Order in providing the child with an identity and recognising their family composition.

The main decision that the court need to consider when deciding whether to make a Parental Order is what is in the best interests of the child. A Parental Order will recognise the child’s parents and family for life.

Law Commission surrogacy law consultation

There is currently an ongoing Law Commission consultation looking at reforming the law on surrogacy. Although the consultation period closed in October 2019, the final report and recommendations are not expected until early 2022. However, even after they’ve published their report, it could take some time to implement.

What should you do if considering entering into a surrogacy arrangement?

The law on surrogacy and Parental Orders is a relatively new and ever-evolving area of law. If you’re thinking of entering into a surrogacy arrangement, either as the surrogate or as the potential parent, it is important you seek legal advice to ensure the correct procedures are followed and you know your rights.

There are many pitfalls and possible negative consequences if the right procedure isn’t followed. There are also many case examples where the relationship between the surrogate and prospective parents, or even between the parents themselves, has broken down during the surrogacy process.

Seeking appropriate advice at the earliest stage, and before you enter into any arrangement, will ensure appropriate safeguards are put in place and you know your rights.

If you need to seek advice from a legal expert, our solicitors are on hand to offer support across our Hampshire and Dorset offices.

To arrange an appointment, contact us today on either 02380 221344 or 01202 31500. Alternatively, you can email us at contact@duttongregory.co.uk.