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Amie Calder discusses Parental orders and Surrogacy arrangements
- AuthorAmie Calder
Parental Orders and Surrogacy Arrangements
- The legal parents of a child in cases of surrogacy are the surrogate mother and either the man or woman the surrogate mother was married to or was in a civil partnership with at the time of treatment if they consented to the treatment.
- The time of treatment is when the embryo or sperm and eggs were placed into the surrogate mother via artificial insemination.
- If the surrogate mother was not married to a man or a woman or in a civil partnership with a woman at the time of the treatment, then the “second parent” will be the person who is alive and gave certain notices. However, their egg or sperm must not have been used in the creation of the embryo and the treatment was provided in the UK by a person with a licence.
- Therefore, the “intended parents” of a surrogacy arrangement are usually not the legal parents of the child and will therefore not have parental responsibility for them. Therefore, it is important for “intended parents” to know that they can apply for parental orders.
- Parental orders are important as they are transformative (i.e. transfer the legal parentage and therefore parental responsibility to the intended parents).
- Surrogacy agreements are unenforceable and therefore it is important to apply for parental orders.
Criteria for applying for Parental Orders
Section 54 of the Human Fertilisation and Embryology Act 2008 sets out the criteria that applicants need to be able to comply with to be able to apply for a parental order. These are set out below: -
- An application must be made by two people if the surrogate mother is not one of the applicants and the sperm or egg of at least one of the applicants was used to bring about the creation of the embryo.
- The applicants must be –
- (a) Husband or wife,
- (b) Civil partners of each other, or
- (c) Two persons who are living as partners in an enduring family relationship.
- The applicants must apply for the order six months after the child was born. However, case law shows that Judges are willing to make parental orders ten years after this six-month time limit if the applicants show good faith and that they did not know that they needed to make a parental order.
- At the time of the application and the making of the order-
- (a) The child’s home must be with the applicants’ and
- (b) Either or both of the applicants must be domiciled in the UK or in the Channel Islands or Isle of Man.
- At the time of the making of the order both of the applicants must be 18 years of age.
- The Court must be satisfied that –
- (a) The surrogate mother, and
- (b) Any other person who is a parent of the child but is not one of the applicants,
- Have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order.
- Subsection 6 does not require the agreement of a person who cannot be found or is incapable of giving agreement; and the agreement of the surrogate mother is ineffective for the purpose of that subsection if given by her less than six weeks after the child’s birth.
- The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred), has been given or received by either of the applicants for or in consideration of –
- (a) The making of the order,
- (b) Any agreement required by subsection 6, or
- (c) The making of arrangements with a view to the making of the order, unless authorised by the court.
- Parental Orders can be made in relation to domestic or international surrogacy arrangements.
The Paramount consideration of the Court
The paramount consideration of the court is the child’s welfare. It will only be in the clearest case of abuse of public policy that the court will be able to withhold an order if otherwise welfare considerations support its making.
If you are thinking of entering into a surrogacy arrangement, whether here or abroad (please remember that commercial surrogacy arrangements here are illegal), it is important to receive independent legal advice before you enter into this arrangement and to apply as soon as you can after the child is born for a parental order.
If you have already entered into a surrogacy arrangement and have not applied for parental orders, it is important that you do so as soon as possible.