Parental Order & Surrogacy Law

A parental order is a court order which ensures you are the legally recognised parent of your child and permanently removes the legal rights of the surrogate and their spouse. Our surrogacy lawyers can help you navigate this process both here in the UK and overseas.

What are the requirements of a parental order?

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.

If the parental order application is made by two people, they must be over 18 and either married, in a civil partnership 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 a parental order 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.

When should I make my parental order application?

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

‘Altruistic’ surrogacy law

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.

Parental orders outside of the UK

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 surrogacy lawyer 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 surrogacy 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).