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 become parent(s).
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, choose not to or cannot carry a child themselves.
The surrogate may use their own egg, a donor egg or the egg of the intended parent for this process. In order for the surrogacy to proceed, at least one of the intended parents must be genetically related to the baby through either their sperm or egg.
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, also known as gestational surrogacy. 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. 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 in 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 parenthood 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.
Surrogacy law reforms
A consultation period on surrogacy law ran between 6th June and 11th October 2019, after the publication of a paper, ‘Building families through surrogacy: a new law’. A final report setting out recommendations for the reform has since been prepared.
The paper proposed the following reforms:
- 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.
A move away from the traditional ‘mother and father’ approach
The HFEA 2008 consolidated previous legislation to ensure that the law adapts to fit the evolving scientific and social background of the 21st century. The relevant sections came into force on 6th April 2009 and apply to children conceived on or after that date.
This provision has moved away from the traditional mother and father approach to ‘parentage’. Significantly, it provides for a mother and another parent who may or may not be the father. This allows for female-sex parenting and for parenting by those who are not the biological parents of the child.
The notion of the ‘other parent’ has become much more inclusive, catering for same-sex parenting and parenting by those who are not a child’s biological parents. Nevertheless, there are still calls for reform to assert the rights of the commissioning parents from the outset to allow for these arrangements to be enforceable but most importantly, to provide for greater certainty and stability for the newly born child where issues can arise.
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 and LGBTQ+ lawyers in Bristol.