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Divorce law blog

Protecting your right to be a parent in surrogacy arrangements

23/06/2015   By: Rose-Marie Drury

Having a baby through a surrogacy arrangement can often be a long and difficult journey for intended parents. It’s important to ensure that at the end of that journey your legal position as parents is protected.

It’s estimated that up to 2,000 children are born each year to UK intended parents through surrogacy – the vast majority are born overseas in places such as India and California where commercial surrogacy is permitted. However, many intended parents are unaware that they need to apply for a parental order from the English court to become legal parents and last year only 241 applications were made for these essential orders.

Why does this matter?
Without a parental order the surrogate will remain the child’s legal mother and if she is married her husband will be the legal father of the child. In English law there can only ever be two people with the legal status of parents at any time so if you are the intended parents – and even if you are genetically related to your child and even if you are taking care of them day-to-day – you will not be treated as legal parents without the parental order . One of Britain’s leading surrogacy judges recently commented that without a parental order intended parents face a ‘ticking legal time-bomb’

There are lots of different situations where being able to prove you are a legal parent/legal child matters. For example:

  • Parental responsibility - which covers involvement in decisions such as medical treatment for your child or what school they go to. Without parental responsibility you aren’t entitled as of right to have your say on these important issues.
  • Inheritance - if your Will refers to ‘Child’ or ‘Children’ your child might be excluded from inheriting because they are not your legal child.

If you do not have a Will your child may not inherit under intestacy rules.

  • Passports – although you may have already obtained a passport to bring your child into the UK you may not be able to renew your child’s passport if you cannot show that you obtained a parental order.
  • Relationship breakdown – your rights in relation to your child such as when you see them or child maintenance may be affected in the event your relationship with your partner breaks down.

But I have a foreign order or a foreign birth certificate!
In some places, such as California and India, it is possible to obtain an order from the court which says you are the parents or a foreign birth certificate which gives your details as the parents. Understandably you would expect that to be enough but unfortunately English law doesn’t recognise these orders or birth certificates so it is essential you apply for a parental order.

How do I protect my position?
If your child is born through a surrogacy arrangement you should apply for a parental order. Your application should be made within 6 months of your child’s birth although it may be possible to make the application at a later date at the court’s discretion.

It’s important as soon as you become aware that you need a parental order that you take advice on the options open to you to ensure that you protect your position. If for some reason it isn’t possible for you to obtain a parental order then you may be able to apply to legally adopt your child or to put in place other steps which will protect you and your child’s rights.

To read more about surrogacy see http://www.mills-reeve.com/surrogacy/ or contact one of our specialist family lawyers on 0844 800 8416.

Rose-Marie Drury

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