Upon the birth of a child born to surrogacy, the surrogate shall be the child’s legal mother, even if there is no genetic link between the surrogate and the child. If the surrogate is married to a man, her husband shall be the child’s legal father. For many intended parents and surrogates, this is less than ideal.
The Law Commission recently released a report, ‘Building Families through Surrogacy: A New Law’, with recommendations to modernise surrogacy law. However, unless and until the law is reformed, the legal parentage of children born to surrogacy may not reflect the intentions and wishes of the intended parents and the surrogate. At present, intended parents must obtain a Parental Order after the birth of the child to transfer the legal parenthood and parental responsibility for the child from the surrogate (and her husband) to the intended parents.
The intended parents must bring an application under section 54 of the Human Fertilisation and Embryology Act 2008 (“HFEA“). If a child is born in England and Wales, and the application is undisputed, this application must be issued in the Family Court and should be allocated to a lay justice. This application must be submitted within six months of the child’s birth (although there have been cases permitting extensions of this deadline). However, the application should not be brought until after six weeks since the birth of the child, as a surrogate cannot agree to the Parental Order until this has passed.
The criteria for a parental order are as follows:
- The child was carried by a woman, who was not one of the applicants, following assisted conception;
- The child must be genetically related to one of the applicants;
- The applicants must be married, in a civil partnership or living as partners in an enduring family relationship and are not within prohibited degrees of a relationship. There is separate provision for sole applicants under the HFEA;
- The child’s home must be with the applicants;
- The applicants must be over the age of 18 at the time of making the Parental Order, and either or both applicants must be domiciled in the United Kingdom, Channel Islands or the Isle of Man;
- The surrogate (and her husband) must freely, and with full understanding of what is involved, agree unconditionally to the making of the Parental Order. The surrogate should provide written consent witnessed by the parental order reporter. If the surrogate cannot be found, or she is incapable of giving consent, then the consent is not required. However, if the surrogate withdraws her consent or does not provide it in the first place, the Parental Order cannot be made.
- The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) had been given or received by either of the applicants for or in consideration of (i) the making of the Parental Order, (ii) the surrogate’s agreement to making the Parental Order, (iii) handing over the child to the applicants, or (iv) making arrangements with a view to the making of the Parental Order unless authorised by the court.
- A Parental Order under section 54 or section 54A HFEA cannot have previously been made, unless it was quashed or an appeal against such an order was allowed.
The applicants will have to provide certified copies of the entry of the Register of Live Births in respect of the child with the application. The child’s identity will have to be proved, which can include providing evidence of a genetic link, for example by DNA test results.
The court may issue directions to include the provision of witness statements, which can set out the welfare decisions for the child and details of any expenses paid. CAFCASS will provide a parental order reporter, whom will report to the court in respect of the application.
The application will be heard at court at a First Directions Hearing, followed by a Final Hearing. At the Final Hearing, the court will make the Parental Order if it is satisfied to do so. Upon the grant of a Parental Order, the intended parents will obtain legal parenthood and parental responsibility for their child, and so the child shall be treated as their child in law, and not that of anyone else. The birth certificate of the child can be reissued showing the applicants as the child’s parents.
The Parental Order is, therefore, an important final step in the intended parents’ surrogacy journey to secure their legal parentage, even if they feel that their parentage started long before. However, the introduction of the reformed law further to the Law Commission’s recommendations will be a profound change to the law on surrogacy and Parental Orders. It is hoped that the new law will better reflect the intention of the surrogates and intended parents, and allow the intended parents to be the legal parents from birth, whilst protecting the surrogate’s right to withdraw her consent.