26 November 2020
A Parental Order: Your questions answered
What is a Parental Order and why do I need one?
A Parental Order
Under UK law, the woman who carries and gives birth is the legal mother of that child, even if she has no genetic affiliation to it. Thus, until the intended parents obtain a Parental Order pursuant to s54 (or s54A) Human Fertilisation and Embryology Act 2008, the surrogate remains the legal mother of the child.
If the surrogate is married, her husband is generally the legal father and likewise the surrogate's wife or civil partner is the other legal parent if she is in a same-sex relationship. If the surrogate is not married, the intended father will usually be the legal father if he is the biological father. However, if conception takes place at a fertility clinic in the UK, another adult can nominate a second legal parent, e.g., the intended mother or a non-biological father.
If the child is born in England or Wales, the surrogate as the legal mother of the child, and she will be named on the birth certificate as the mother, together with her spouse/ civil partner if they are the other legal parent. If the surrogate is not married or in a civil partnership, then one of the intended parents may be registered as the father or second parent, so long as they attend in person for the birth registration. If that intended parent is not the biological father, he/she will need to produce the HFEA forms signed to nominate him/her as a parent.
A Parental Order is a court order that grants legal parenthood to the intended parent or parents of the surrogate born child and permanently extinguishes the legal parenthood of the surrogate, and her spouse if she has one. The surrogate and her spouse must consent to the granting of a Parental Order.
Upon the granting of a Parental Order, the birth will be re-registered at the Registry Office and a new birth certificate will be issued naming the intended parent(s) as the legal parent(s) of the child.
What is the criteria for a Parental Order?
The intended parent/s must satisfy the family court that the granting of a Parental Order is in the child's best interests. The child’s welfare is the court’s paramount consideration. In order for intended parent(s) to be eligible to apply for a Parental Order, they must fulfil the criteria below:
- The child has been carried by a surrogate as a result of embryo transfer or artificial insemination;
- The intended parent must be the child's biological parent or if they are a couple, at least one of them must be biologically related to the child;
- If the intended parents are applying as a couple, they must be married, civil partners or living together as partners in an enduring family relationship. Single parents are now also eligible to apply;
- The intended parents must apply for a Parental Order within six months of the child’s birth and although the court may extend this period in exceptional circumstances, do not rely upon this;
- At the time of the application and the date the order is granted, the child’s home must be with the intended parent(s).
- At the date they apply and the date of the order, the intended parent (or if applying as a couple, at least one of them) must be domiciled in the UK, Channel Islands or Isle of Man;
- The intended parent/s must be over 18 when the order is granted;
- The surrogate and her spouse must freely consent to the making of a Parental Order (unless they cannot be found or are incapable of giving consent). The surrogate cannot consent to the making of a Parental Order until six weeks and a day after the birth of the child (consent given prior to this period is not deemed to be valid); and
The court must be satisfied that the intended parents did not pay the surrogate (other than for reasonable expenses). Any payments over and above reasonable expenses will be to be retrospectively authorised by the court.
Why do I need a parental order?
A Parental Order confers legal parenthood on the intended parents under UK law and extinguishes the parental rights of the surrogate (and any spouse). Without a Parental Order, one or both of the intended parents will not be able to exercise parental responsibility and make fundamental decisions concerning their child’s health, welfare and education or obtain essential travel documents. The child may also not recognised for the purposes of inheritance and succession planning. It is advisable to obtain a specialist will when having a baby via surrogacy.
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This publication is not intended to provide a comprehensive statement of the law and does not constitute legal advice and should not be considered as such. It is intended to highlight some issues current at the date of its preparation. Specific advice should always be taken in order to take account of individual circumstances and no person reading this article is regarded as a client of this firm in respect of any of its contents.
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