What are the first steps?
If you are considering surrogacy, you may find it helpful to approach surrogacy charities and centres such as COTS or the British Surrogacy Centre, which can assist both with finding a surrogate and with agreeing a surrogacy arrangement.
Often a written agreement is drawn up that details the arrangements you have made, but you should be aware that no surrogacy contract is legally binding and such a contract would not be drafted by a solicitor.
A solicitor can assist you, though, by ensuring that the intended parents are recognised as the legal parents once the child is born. The relevant criteria are strict and it is therefore recommended that you legal advice before embarking on a surrogacy agreement.
Who does the law recognise at birth?
The woman who carries the child as a surrogate mother is legally recognised as that child’s parent at birth.
If the surrogate is married or in a civil partnership, her husband/civil partner is treated as the child’s second parent. This excludes the intended father(s) from having any legal status at birth. If the surrogate is not married or in a civil partnership at the time of conception, the biological father will usually be treated as the child’s legal father.
The surrogate should register the birth and be named on the child’s birth certificate along with any other second parent who is legally recognised. The person or people named on the birth certificate are granted parental responsibility for the child, which means they are responsible for all decisions concerning the child including: health care, religion, and education.
How do we become the child’s recognised parents?
In order for both intended parents to be legally recognised it is necessary to end the legal status of the surrogate. This is achieved by applying to the Court for a Parental Order, which is where a solicitor can assist.
A Parental Order will end the legal status and parental responsibilities of the surrogate and legally recognises the intended parents by granting them parental responsibility. A new birth certificate can be produced naming the intended parents. There are strict criteria for obtaining a Parental Order which must be complied with.
To obtain a Parental Order you must show:
- You are married, in a Civil Partnership or living together in an enduring relationship (it is currently not possible for a single person to apply for a Parental Order but this is under review at present)
- That at least one of you reside in the UK
- That you are both over 18
- One or both of you are genetically related to the child
- That the child’s home is with you
- Conception took place artificially (this can include home insemination)
- The surrogate (and if appropriate her partner/spouse) have freely and willing agreed to the making of the Order and the surrogate must have been given at least six weeks since the birth to consent
- The application must be made before the child is six months old (a recent case did grant a Parental Order outside of this timescale but these were exceptional circumstances and it is not advisable to delay)
- No more than reasonable expenses have been paid to the surrogate
Once your application has been lodged with the Court, a hearing date is set to consider your application and the Court will order that a report be carried out by CAFCASS, to determine the best interests of the child.
Where there is a dispute regarding the care of the child and consequent Court proceedings, the Court will make a decision in the best interests of that child, the child being the Court’s paramount consideration.