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/ 15 Sep 2016

Surrogacy and parental orders – what you need to know

Elinor Feeny


Family & Divorce

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What is a Parental Order?
A Parental Order is a court order used in relation to a child born following a surrogacy agreement to make the intended parents the legal parents.
Under English law the woman who gives birth to a child is recognised as the legal mother and, if she is married, her spouse as the legal father. This is the case regardless of the intended parent’s genetic connection to their child or if they already have a foreign birth certificate or court order naming them as the parent.
A Parental Order permanently extinguishes the parenthood of the surrogate and, if relevant, her spouse. Once a Parental Order is made the birth will be re-registered to record the change in legal parents and a new birth certificate issued.

Who can apply for a Parental Order?
At present only couples can apply for a Parental Order. The intended parents therefore must be married, in a civil partnership or can demonstrate an ‘enduring family relationship’.
There are also further conditions that must be met including:
– The conception must have taken place by embryo transfer or artificial insemination, and the child must have been carried by a surrogate and be genetically related to at least one of the intended parents.
– At least one of the intended parents must be domiciled in the UK
– The child must be living with the intended parents.
– The surrogate (and spouse) must freely consent to the order and this cannot be given while the child is less than 6 weeks old.
– No more than reasonable expenses must have been paid, or the court must agree to ‘authorise’ the payments retrospectively.
– The application must be made within 6 months of the child being born although in exceptional cases this can be extended.

What is the process?
Preparation and early legal advice is key to ensuring any Parental Order application is dealt with correctly and proceeds as smoothly as possible.
An application form, the C51, needs to be completed and submitted to your local family court with the required documentation. A Parental Order Reporter will then be appointed and assist the court with providing a report. The court will then consider the application for Parental Order taking into account the child’s welfare as the paramount consideration.

If the case involves an overseas surrogacy and/or the surrogate has been paid compensation in addition to expenses then the application will likely be transferred to the High Court.

What is the alternative?
If a Parental Order is not available then an adoption order is the closest alternative. It also extinguishes the surrogate parents’ responsibilities and provides the intended parents with permanent parental status. However as the process was not designed for surrogacy it is a more complicated and complex process. Other options include a Child Arrangement Order which provides Parental Responsibility but does not change the legal parents of a child or a Special Guardianship order.
Due to the different options it is important to get specialised advice about what is most appropriate for your particular circumstances.

If you require advice and/or assistance in relation to making an application for a Parental Order, please contact the family law team at Hanne & Co, where our experienced solicitors would be happy to help.

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