By Family Law Paralegal, Helen Savage
When a child is born through surrogacy, the intended parents will need to apply to the Court for a Parental Order. A Parental Order transfers parentage from a surrogate mother to the intended parent or parents. This is a process that can only happen once the baby is born and is subject to conditions.
Why is a Parental Order Needed?
It is important to have a Parental Order in place in these circumstances, as without a Parental Order the intended parents may not be the child's legal parent.
The implications of this is that they would not have the authority to make important decisions about the child's education or medical care. This would result in the intended parents having to try to find, and involve, the surrogate in such future decisions.
How Does a Parental Order Work?
A Parental Order provides for a child to be treated in law as a child of the applicant or applicants, if:
- the child has been carried by a woman who is not the applicant(s) as a result of an embryo or sperm and eggs being placed in her, or artificial insemination; and
- the sperm or egg of at least one of the applicants was used to bring about the creation of the embryo.
When the application for a Parental Order is made by an individual, they must be genetically related to the child, either as the sperm or egg donor. Where the application for a Parental Order is made by two people, one of the applicants must be genetically related to the child. In addition the applicants must either be husband and wife, civil partners or two people who are living as partners in an enduring family relationship.
Importantly, the application for a Parental Order must be made within six months of the child's birth. Additionally, the applicant or applicants must be at least 18 years old and must reside permanently in the UK, Channel Islands or Isle of Man and have the child living with them.
What the Court Will Consider
The Court must be satisfied that the surrogate and her husband or civil partner (if there is one) have freely, with full understanding of what is involved, consented unconditionally to the making of the Parental Order. This consent must be provided at least six weeks after the birth of the child in order to be effective.
The Court must additionally be satisfied that no money or any other benefit, other than expenses reasonably incurred, have been given or received by either of the applicants for:
- the making of the Parental Order
- the surrogate, or her husband or civil partner's consent to the Parental Order
- the handing over of the child
- the making of any arrangements with a view of making the Parental Order
This applies unless such a payment has been authorised by the Court.
The paramount consideration for the Court will be the child's welfare throughout their life when deciding whether or not to make a Parental Order. The Court will appoint a Parental Order Reporter from Cafcass, who will meet with the intended parents along with the surrogate and her husband or civil partner. The reporter will then produce a report for the Court making a recommendation as to whether the Parental Order should be made or not.
The Effect of a Parental Order
The effect of a Parental Order is that it will make the intended parents the legal parents of the child. The Parental Order will give parental responsibility for the child to the applicant or applicants, and will permanently remove the parental responsibility any other person had before the Parental Order was made.
A Parental Order will have a lifelong status, like an adoption order, and can only be set aside in very limited circumstances.