In the context of surrogacy, a parental order is a court order that transfers legal parenthood from the surrogate (and her partner, if applicable) to the intended parents, ensuring they are legally recognised as the child’s parents.
A parental order is crucial because without it, the intended parents may not be considered the child’s legal parents in the UK, potentially leading to issues with passport applications, healthcare decisions, and inheritance.
What is surrogacy?
Surrogacy is a method of assisted reproduction where a woman (the surrogate) carries and gives birth to a child for another person or couple, known as the intended parent(s). In the UK, surrogacy arrangements can help individuals and couples, including same-sex couples, single parents, and those who are unable to carry a child themselves, achieve their dream of becoming parents. There has been an increase in surrogacy as family formation, particularly with the use of international surrogates. However, the legal process following birth is complex and requires formal recognition of parenthood for the intended parent(s)—this is where parental orders come into play and specialist legal advice is needed. But what exactly is a parental order, and why is it so important for the intended parent(s)? This blog explores the significance of parental orders and why they should be prioritised by intended parent(s) as part of their surrogacy journey.
Understanding a parental order in surrogacy
A parental order is a legal process that transfers legal parenthood of a child born through surrogacy to the intended parent(s) from the surrogate and their partner, if applicable. It is a key step in ensuring that the intended parent(s) are recognised as the legal parents of the child.
If you are considering an international surrogacy arrangement, it is crucial to seek specialist legal advice to understand the legal parenthood of the child when they are born, together with any complications which may arise in the transference.
Parental orders ensure that the child is legally recognised as the biological child of the intended parent(s), even if the surrogate mother gave birth. Without a parental order, the surrogate mother remains the legal mother of the child and if she is married then her partner will be the legal father or second parent of the child. It is therefore imperative to understand what is required to obtain a parental order and the timescales involved.
Why parental orders are important for intended parents
A parental order gives the intended parent(s) full legal rights and responsibilities toward the child. This means that they can make important decisions about the child’s upbringing, including health care, education, and other legal matters. It is important to consider how decisions around health care will be dealt with in the event medical treatment is required before a parental order is made.
The parental order process ensures that the intended parent(s) are recognised as having parental responsibility for the child and are the ones responsible for the child’s well-being, which includes financial and emotional responsibilities.
Protecting the child’s legal status
Parental orders also secure the child’s legal status, ensuring they are officially recognised as the child of the intended parents. This has important implications for nationality, citizenship, and inheritance rights.
For children born in the UK this may not be a prominent issue, but international surrogacy arrangements are becoming increasingly prevalent and therefore the nationality and citizenship of the child will need to be considered, and specialist immigration advice may be needed.
The parental order process: What you need to know
The criteria for a parental order are set out in Section 54 and 54(A) of the Human Fertilisation and Embryology Act 2008.
The process to apply for a parental order can take up to a year, and the application should be made before the child is 6 months old. The application can be made from 6 weeks after birth, and the surrogate must freely provide her consent to the making of the parental order, which cannot be done until 6 weeks has elapsed.
If a parental order is made, then a new birth certificate will be issued, recording the names of the parents and the original birth certificate naming the surrogate mother will be sealed.
If the criteria within the Human Fertilisation and Embryology Act 2008 are not met, then specialist family law advice should be sought to consider the best next steps for your family.
Risks of not applying for a parental order
Without a parental order, the surrogate mother and their partner (if applicable) may retain their legal rights over the child. This could lead to future complications, especially in matters of parental responsibility, inheritance, and nationality. If a parental order is not received the intended parent(s) may have difficulty making decisions for the child, which could pose serious issues should urgent medical care for the child be needed.
Parental orders are a vital part of the surrogacy journey, ensuring that intended parent(s) receive full legal rights and recognition of their parenthood. Not only do parental orders establish their legal connection to the child, but they also protect the child’s legal status and secure their future. If you’re considering surrogacy or have already gone through the process, seeking legal advice and applying for a parental order should be a priority.
How Moore Barlow can help
Surrogacy and the associated legal processes can be complex and overwhelming. Moore Barlow’s Surrogacy solicitors can guide you through every step, ensuring you understand your rights and responsibilities.
Whether you’re in the process of surrogacy or have already had a child through a surrogate, our experienced team can provide tailored advice to help you navigate the legalities of parental orders and surrogacy law in England and Wales.
If you need guidance on applying for a parental order or have questions about surrogacy law, Moore Barlow is here to help. Our expert team can provide the support you need to ensure a smooth and successful process.
