To have and to hold: Your legal rights if are using a surrogate

Children|Family|Wellness & Self Help|October 31st 2018

This year, our specialist surrogacy law team will be at the Fertility Show at London Olympia on 3 & 4 November. The show is a unique event bringing together a wide range of fertility-related advice, experts, clinics and other organisations in one room to answer any questions.

Ahead of this event, Bethan Cleal, a solicitor in our Winchester office who specialises in domestic and international surrogacy arrangements, as well as other specialist fertility law issues, joins us on the blog to explain some of the key issues when considering a surrogacy arrangement, both in the UK and overseas.

The law at birth

In the UK, the woman who gives birth to a child is the legal mother, and if she is married, her spouse is recognised as the child’s second legal parent. This law has a direct impact on surrogacy in that the intended parents (who may also be the biological parents) are not recognised as their child’s legal parents from birth.

This frustrating legal position is resolved by the intended parents applying to the UK court for a parental order. The parental order will remove the status of the surrogate and her spouse, and reassign legal parenthood and parental responsibility to the intended parents.

How to apply for a parental order?

To obtain a parental order you need to make an application to the court once your baby has been born by completing the Form C51.

When considering a parental order application, the court will want to be satisfied with a number of criteria, and I have explored a few of these below:

You cannot apply for a parental order if you are single. You must be a couple (either married, in a civil partnership or living together in an ‘enduring family relationship’).

However, this is due to change following a case in 2016 where the President of the High Court Family Division said that the current law discriminates unfairly against single parents and their children. As a result, a draft remedial order (which is a fast-track way the government can amend the law) has been laid before Parliament for the second time. We are hopeful that we might see the change in early 2019 and will keep you updated.

One of both applicants must be domiciled in the United Kingdom, Channel Islands, or Isle of Man

Domicile is a tricky legal concept and broadly speaking, looks at where an individual considers their home to be. Everyone is born with a ‘domicile of origin’ but this can subsequently be changed by moving to a new country and forming the intention to make it your permanent and indefinite home, and this is called acquiring a ‘domicile of choice.’

If you were born overseas and now live in the UK, or if you were born in the UK but lived overseas for a period of time, it is important to get advice before starting your surrogacy journey to ensure you will be able to satisfy the court of your domicile. I have lots of experience working with international families and can advise further.

Your surrogate must freely, and with a full understanding of what is involved, agree unconditionally to the making of the parental order.

If she is married, her husband/wife will also need to consent. This is an absolute requirement, and if your surrogate and her spouse do not consent, then the court will not be able to make a parental order.

Obtaining their consent is, in practice, a paperwork exercise and one that must be handled carefully, particularly where you are going through surrogacy overseas and there may be a language barrier.

Other criteria:

There are also a number of other criteria you will need to meet, including those relating to payments made to your surrogate, the time frame in which your application should be made and your biological link to the child. We can discuss these with you in more detail.

What if you cannot apply for a parental order?

The closet alternative to a parental order is an adoption order. However, the law and processes can be complicated as it was never designed with a surrogacy arrangement in mind. Other options are a child arrangements order or a special guardianship order, but neither of these options will reassign parenthood and so won’t give intended parents a complete legal solution.

Our surrogacy team can help you understand all of the options open to you and discuss the different orders available.

Get in touch

No matter whether you are in the very early stages of considering a surrogacy journey or if you have already taken steps, and perhaps your surrogate is already pregnant, if you have any questions at all please do not hesitate to get in touch with the surrogacy team.

Alternatively, Bethan will be at the Fertility Show with our surrogacy team and will be on hand to answer any questions and advise on anything relating to surrogacy, fertility law, and any surrounding family law issues. You can buy tickets by clicking here and we look forward to seeing you there.

Author: Bethan Cleal

Bethan advises on all aspects of family law and is a specialist in domestic and international surrogacy arrangements. Following her training in a niche fertility law firm, she has experience of fertility cases involving legal parentage and donor conception.

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