Surrogacy and parental responsibility: the law
In the UK, if a couple want to start a family using a surrogate, they should be aware of the different legal ways to become parents. Their route to legal parenthood will be affected by their relationship status, among other factors.
In 2008, the law changed to allow married couples, civil partners and couples in ‘enduring relationships’ to obtain a parental order, transferring legal parental responsibility for a child from a surrogate mother and registering the child as their own.
Same sex couples are just as entitled to use a surrogate and apply for a parental order as opposite sex couples, provided they meet the criteria set out by the law. The legal routes to parenthood for single people are more limited, as described below.
Who is a child’s legal parent at birth?
When the child is born, the surrogate is considered the mother and therefore has parental responsibility. If the surrogate is married, their spouse 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 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.
Can single people become parents through surrogacy?
Currently, single parents are not eligible to apply for a parental order, but proposed changes in the law would mean that both existing and future parents would be entitled to apply. Currently, single applicants have to either adopt a child (via an adoption order) or obtain a child arrangement order (giving them responsibility for the child, but not legal parenthood).
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:
- There must be two applicants, either married, in a civil partnership or in an ‘enduring relationship’
- Both must be aged over 18
- At least one applicant must be the biological parent – the donor of either the sperm or the egg used to conceive the child.
- The child must live with the parents at the time of the application
- The surrogate must consent to the process
- The parental order must be applied for within six months of the child’s birth
Without a parental order in place, the child’s parents 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.
How we can help
The law can be quite complex around donor conception and surrogacy. If you wish to find out more information around parental orders, surrogacy or surrogacy disputes, our specialist fertility and LGBT family lawyers in Bristol can give you advice.