The law on surrogacy and parental responsibility

In the UK, if a couple or person wants to start a family using a surrogate, they should be aware of the legal way to gain parental responsibility.

What is surrogacy?

Surrogacy is an arrangement in which a person agrees to carry and give birth to a child for another person or couple. This may be because they are unable to conceive, or cannot carry a child themselves.

The surrogate may use their own egg (known as traditional surrogacy), a donor egg or the egg of the intended parent (known as gestational surrogacy) for this process.

At least one of the intended parents must be genetically related to the baby through either their sperm or egg to qualify for surrogacy.

Who is a child’s legal parent at birth?

When the child is born, the surrogate is considered the legal mother and therefore has parental responsibility.

If the surrogate is married or in a civil partnership, their spouse/partner will have parental responsibility too. This is the case even if the child is not the surrogate’s biological child, i.e. not conceived from one of her eggs. Once the Parental Order has been made, the surrogate and their spouse/partner will lose the legal right to be the child’s parents.

If the surrogate is unmarried and sperm from the child’s intended father has been used, he will already be considered the legal father and can obtain parental responsibility and be named on the birth certificate when the child’s birth is registered. If a clinic has been used for the surrogacy process, then the surrogate can appoint the intended mother or a non-biological father as the second parent. A Parental Order will still be required, in any event.

What are the criteria for a Parental Order?

Obtaining a Parental Order has certain criteria that must be met before the formal process can begin. These include:

• Either there is one intended parent, e.g. a single parent, or, if there are two intended parents, they are married/in a civil partnership or an enduring family relationship together (same-sex couples and co-parents are eligible to apply for Parental Orders as joint applicants. In some circumstances separated couples will still qualify as being in an enduring family relationship).
• Any intended parent(s) must be aged over 18.
• The intended parent(s) (or at least one of them) are genetically related to the child.
• The child must live with the intended parent(s) at the time of the application and they must be domiciled within the UK.
• The Parental Order must be applied for within six months of the child’s birth (although the court does have discretion to extend this time limit in exceptional circumstances).
• The child was carried by a surrogate as a result of assisted reproduction techniques, i.e. was not conceived ‘naturally’.
• The surrogate and anyone else who is treated as a legal parent at birth must consent to the application being made more than six weeks after the child’s birth.
• Any payments which were not for expenses reasonably incurred have been approved by the court.

Without a Parental Order in place, the child’s intended parent(s) will not have legal parental rights even if the child was conceived using their sperm and/or one of their eggs. If they have no such biological link to the child, then the only option is an adoption order. If this is the case, a UK adoption agency will have to be involved with the surrogacy process from the start.

Removing parental responsibility in surrogacy

No matter how a child is conceived or birthed, the reality is that relationships can still break down and the intended parents may want to separate.

In most cases, both parents will maintain parental responsibility and co-parent a child born via surrogacy; however, in rare cases, it may be decided that one parent should have their parental responsibility removed.

If a child is born via surrogacy and the intended father is granted parental responsibility, but it is later decided by the child’s parents that this should be removed, there are two ways in which this can be done, depending on how that parental responsibility was given.

Parental responsibility via inclusion on a birth certificate

If a child is born via surrogacy using a sperm donor and the father is not married to the mother and obtains parental responsibility by being named on the birth certificate, it is relatively straightforward to remove this. Either parent can apply online to have the father removed from the certificate, however, you must provide evidence that the person is not the ‘natural’ father of the child. The most common way of doing this is through a DNA test, a letter or a court order.

By doing this, parental responsibility is removed and the birth certificate will be reproduced with no father listed, just the mother.

Parental responsibility through marriage or civil partnership

If a child is born via surrogacy using a sperm donor and the father is married to the mother, he will have parental responsibility for the child because of being married.

This situation is more complex and involves an application to the court for a Prohibited Steps Order and a Specific Issues Order that effectively render the named father’s parental responsibility powerless.

Surrogacy law reforms

The law on parental responsibility for surrogacy may soon change. In 2023, the Law Commissions of England and Wales outlined the following proposed reforms to surrogacy law:

• To replace Parental Orders with a new surrogacy pathway to allow most parents to be legal parents from the moment of birth.
• To introduce specific regulations for surrogacy arrangements and safeguards such as counselling and independent legal advice to reduce the risk of arrangements breaking down.
• To allow international surrogacy arrangements to be recognised in England and Wales, on a country-by-country basis.

Contact our surrogacy solicitors in Bristol

The law around donor conception and surrogacy can be quite complex. To find out more information about Parental Orders, surrogacy or surrogacy disputes, contact our specialist fertility lawyers in Bristol.

For an informal chat, call us on 0117 325 2929 or complete our online enquiry form.