The law in the UK in relation to Surrogacy Arrangements is complicated and can lack the certainty that most couples wanting to have children seek. Many British couples are therefore attracted to going abroad, where in some countries, a much more liberal approach is taken. For example, some countries will allow intended parents to be named on the birth certificate as the legal parents immediately or to have pre-birth orders, such as the USA.
However, whilst the above is immensely attractive, if the intended parents are domiciled (residing on a permanent basis) in the England or Wales, then our law will apply irrespective of the international position – English Law will therefore take precedence over the foreign law. This could result in one or both intended parents having no status under English Law as a parent. It is for this reason that it is important to obtain legal advice specific to your circumstances prior to entering into any surrogacy arrangement both in the USA and in England to ensure that the outcome you wish can be achieved and for you both to be recognised as the legal parents of the child.
In order to obtain parental status in England following a surrogacy arrangement it will be necessary to apply to the Courts for a Parental Order. On the making of a Parental Order a new UK birth certificate is issued naming you the intended parents as the legal parents of the child and therefore conferring all associated rights and responsibilities in respect of the child to you here in the UK. Irrespective of what the law says in the country in which the child is born, the surrogate mother will be the legal mother until the Parental Order is granted and extinguishes her rights.
Who can apply for a Parental Order
The law has recently changed, and from 6 April 2010 unmarried couples can now also apply for a Parental Order. This extends further to couples who are in a same sex relationship whether in a civil partnership or cohabiting.
The Application and criteria for applying for a Parental Order
As mentioned above, the application for a Parental Order is regulated by very strict conditions. Therefore in order to apply for a Parental Order the following criteria must be met:
The Applicants (Intended Parents):
- Must be at least 18 years old.
- Must be married, civil partners or cohabiting in an enduring relationship. This includes same sex couples.
- At least one of the Intended Parents must be the biological parent.
- At the time of the application and the time the order is made, either Intended Parent (or both) are domiciled in a part of the UK (England and Wales, Scotland or Northern Ireland) or the Channel Islands or the Isle of Man. Domiciled meaning residing on a permanent basis.
- The child must be born to a surrogate as a result of conception taking place through artificial insemination. In other words, not following intercourse.
- The child lives with the applicants/intended parents at the time of the application and at the time when the order is made.
- The surrogate and her husband or civil partner, if there is one, (this person will automatically be deemed the legal father or “the other parent” of the child) have consented to the application. The consent must be given at least 6 weeks after the birth in order to provide them with a cooling-off period.
- No more than reasonable expenses have been paid to the surrogate mother for the arrangement. The Court will consider this carefully and will decide what constitutes a reasonable expense on a case by case basis. The courts are careful to give this a high level of scrutiny before retrospectively approving any which fall outside this scope, but recent cases have been made clear that the interests and welfare of the child will be paramount. Again, as your advisors, we will help you through this process and ensure you receive all the advice you need to navigate the path to success.
- Must be made within 6 months of the birth of the child.
It is therefore important to ensure that all the above criteria are met before you proceed with the making of the application and we would advise that you seek independent legal advice to ensure that you avoid any potential pitfalls.
Other issues to consider
Citizenship and Immigration
A further factor and one of paramount concern is whether the parents will be able to bring the child back to the UK. We would however advise that you seek specialist immigration advice.
It is important to note that surrogacy agreements are not enforceable in the UK Courts. This therefore means that if you enter into a Surrogacy Agreement it is not legally binding and the Court can overrule the contents of such an agreement.
In practice, the family courts have proved sympathetic to the intended parents applying for a Parental Order and can take into consideration the terms of the Surrogacy Agreement so it still worth entering into one with your Surrogate to be clear on the terms. Such an agreement can help to iron out any difficulties from the start and ensure that all parties are starting from the same position.
For more information contact us…
0207 426 0382