Surrogacy Procedure

Parental Order Applications for children born through surrogacy outside the UK.

The child

A parental order will only be made in respect of a child who has been carried by a surrogate and has a genetic link to one of the applicants.

The applicant or applicants

If the application is made by two people they must be over 18 and either married, civil partners or in an enduring family relationship. At the time of the application and the making of the order the child's home must be with the applicant or applicants and either or both of them must be domiciled in the United Kingdom.From 3 January 2019 an application can also be made by one person (a single parent). For a short period of time (until 3 June 2019) this change in legislation will apply retrospectively and applications can be made in respect of a child born before January 2019 (i.e. the timing provision set out below will not apply). Otherwise, the same provisions which apply to two applicants apply in cases where there is one applicant.

An individual can be resident outside the UK while still remaining domiciled in the UK.

Timing

The application should be filed at Court between 6 weeks and 6 months from birth.

Consent

The court must be satisfied that both the surrogate and any other legal parent of the child, for example the surrogate's husband, has given free and unconditional consent to the making of the order, with a full understanding of the legal implications. Such consent will be invalid if it is given by the surrogate less than six weeks after the birth of the child.

'Altruistic' surrogacy

The court must be satisfied that no money or other benefit (other than expenses reasonably incurred) has been paid. Any payments made to the surrogate over and above her actual expenses may be retrospectively authorised by the court. In the absence of anything untoward or inappropriate in the financial dealings between the parties payments will normally be authorised.In order to obtain the court's authorisation it is therefore important to provide a detailed schedule of sums expended during the surrogacy. It is usually the case that making the parental order is considered to be in the best interests of the child.

Immigration

The child will hold a passport of their country of birth and will enter the UK on a six month visitor's visa. When travelling it is a useful precaution for the parents to have either a letter from the solicitor dealing with the parental order application and/or any relevant documentation in relation to the application and documents relating to the legal formalities in the country of birth.Following the making of a parental order the court will notify the Registrar of Births who will then issue a UK birth certificate. Once the child has obtained a UK birth certificate an application can be made for a UK passport. Provided that at least one of the child's legal parents is British, a child will become British on the grant of a parental order. 

Effect of a Parental Order

A parental order confers legal parenthood and parental responsibility on the applicants (the commissioning parents). The effect of the order is conclusive; in law, the child is for all purposes treated as the child of the applicants and not the child of the surrogate or her husband (if relevant). As the surrogate does not have parental responsibility or any legal relationship with the child any future relationship or contact arrangements are solely at the discretion of the commissioning parents.The main consequence of a parental order is that the child becomes a full child of the family on an irrevocable basis. As a result, there is no remaining relationship between the child and the surrogate mother and her husband (if relevant).

Stage 1

Application for a Parental Order

Stage 2

The court sends Notice of the Proceedings to the applicant(s) and the respondents (the surrogate and her husband, if relevant).

Stage 3

The applicant or applicants file:

• Their own witness statements, which should include detail of their background, links to the UK, journey to parenthood, future welfare issues for the child (including child care, home and schooling), and expenses incurred as part of the surrogacy agreement;
• Witness statement of the surrogacy agency, in order to support the applicant's position in relation to expenses paid;
• Witness statement of the surrogate's physician, in order to establish the genetic link;
• Witness statement of the legal representative, in order to demonstrate that the surrogacy has taken place in accordance with the laws of the country in which the child is born;
• Acknowledgment of service of the surrogate and any other legal parent, in order to demonstrate that they have been notified of the proceedings; and
• Notarised agreement to the making of the Parental Order of the surrogate and any other legal parent, in order to demonstrate consent.

Stage 4: The court appoints a Parental Order Reporter, in order to obtain a CAFCASS case analysis to assist in determining the welfare and best interests of the child. This process is set in motion when the application is made and may take place before the Directions Hearing.If possible, the reporter will visit the applicant or applicants at their home. Otherwise, the reporter will liaise with relevant agencies in the applicant's country of residence.

Stage 5

Directions Hearing: if necessary the court will make directions and set a date for the final hearing. The applicants are not required to attend the Directions Hearing if they are represented.

Stage 6

Final hearing: the judge determines whether he/she is satisfied with the evidence and a parental order is made. If all relevant evidence (including the evidence of the Parental Order Reporter) is available the Directions Hearing can, subject to the court's approval, be used as a Final Hearing.  Applicants and the child are required to attend the Final Hearing.

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If you have any queries, please get in touch with our Family Law Specialists, or contact Charlotte Coyle.Please also see our designated claims against maternity services page.