It is not always straightforward when deciding to start a family and sadly, many families struggle to conceive naturally. As a result, it is becoming more commonplace to look at alternative options to have children such as IVF, surrogacy or adoption. With all of these options, it is important to understand your legal position as it may not be as simple as you might expect.
Surrogacy has particular intricacies depending on your biological relationship to the child and the marital status of the surrogate mother. In addition to the emotional journey of embarking on a surrogacy arrangement, it is therefore important to consider the legal implications of using a surrogate mother to have children and to fully understand your position.
A crucial aspect of the law relating to surrogacy is the legal status of the parents. It is important to understand that a surrogate mother will be the legal mother to the child she has carried, even in circumstances where she has no biological link to that child. Perhaps even more surprisingly, if the surrogate mother is married at the time she delivers a child, then her husband will be the legal father to that child, again in spite of there being no biological link to the child. The same applies to a civil partner of the surrogate mother, who would also be considered a legal parent. If the surrogate mother is single, then the father who instructed the surrogate will be the legal father, although only if he has a biological connection with the child. He may not have parental responsibility though, unless he attended with the surrogate mother to register the child and was registered as the child’s father on the birth certificate, (or he has entered into a Parental Responsibility Agreement with the Mother).
This could result in a situation whereby the biological mother and/or father (who have instructed a surrogate to carry their child to term) may have no legal relationship with their child at birth.
This also gives rise to the issue of ‘Parental Responsibility’ which is the umbrella term used to describe all the rights, duties, obligations and responsibilities that a parent has towards their child, for example, this includes consenting to medical treatment, or making choices as to education, or religion.
In circumstances where you are hoping to use surrogacy to start a family, you will need to ensure that the surrogate or her husband/civil partner will not maintain any enduring legal relationship with your child, as would be the case had the child been conceived naturally. This is where Parental Orders come in. A parental order is required to grant the applicant parents legal status as the child’s parents and to extinguish the parental responsibility of the surrogate mother and her husband or civil partner, and to give parental responsibility to the intended mother and father who commissioned the surrogacy arrangement. It is for the applicant parents to apply for Parental Orders to deal with their legal status – it is not something that is automatically granted.
It is therefore important to understand the legal position before embarking on the use of a surrogate. Section 54 of the Human Fertility and Embryology Act 2008 governs Parental Orders and sets out the criteria that a court will apply when considering whether to grant a Parental Order in each case:
(a) The child has to have been born as a result of a full or partial surrogacy arrangement, using the gametes of at least one of the applicants.
(b) The applicants must be must be either married, in a civil partnership or living together as partners in an enduring family relationship.
(c) The application for a Parental Order must be made within six months from the day the child was born.
(d) At the time of the application and the making of an Order, the child must be living with the applicants, and either or both of the applicants must be domiciled in the UK, Channel Islands or the Isle of Man.
(e) At the time the Order is made, both applicants must be over the age of 18.
(f) The court must be satisfied that the surrogate mother and any other parent who is not an applicant (i.e. the husband or civil partner of the surrogate) have given their consent freely and with a full understanding of what is involved. Such agreement/consent is not required in circumstances where a parent cannot be found or is incapable of giving agreement. Further, the agreement to the making of a parental order cannot be effectively given by a surrogate within the first six weeks’ following the child having been born.
(g) Unless it has been authorised by the court, no money or benefit in kind has been exchanged by the applicants in connection with any aspect of the surrogacy arrangements, other than reasonably incurred expenses.
The above criteria will be considered by the court when considering your application to grant legal status and parental responsibility as a parent and to extinguish the legal status and parental responsibility of the surrogate and any other legal parent. It is therefore sensible to have these in mind at the outset of any surrogacy arrangement. It may also be prudent to take legal advice at an early stage to fully understand your position at the outset.