How Does International Surrogacy Work for UK Intended Parents? A Step-by-Step Guide

The parents of the child are not legally recognised at birth. It is the surrogate, and their husband if they are married, who are the legal parents at birth. A parental order is always needed to establish parental rights for a child when that child is born via surrogacy.

1 – A child is born to a surrogate. In English law, the parents at this point are known as the ‘intended parents’. In English law it is the surrogate who holds parental rights for the child and her husband if they are married.

2 – Six weeks after the birth, the intended parents should apply for a parental order in England and Wales. A parental order should be applied for even if the intended parents have an order from the country of birth, or other country, and/or they are named on the birth certificate.

3 – On applying, the surrogate’s provisional consent will be required on a form a101a. If the surrogate is married, the consent of her husband will also be required. This consent cannot be asked for until six weeks and one day after the birth.

4 – Once an application has been made, the court will then make directions including a statement from the parents, formal evidence of consent from the surrogate and list the case for further hearings if required

5 – Provided the surrogate’s consent is obtained, Cafcass, who are the Children and Family Court Advisory and Support Service, will then be asked to prepare a report on whether a parental order should be made. Cafcass will want to meet the family in their home in England and Wales and then will make recommendations on what is best for the child.

6 – At the final hearing, the court will consider whether the legal requirements to make a parental order have been met. These are:

1. 1. The child must be carried by none of the applicants and be biologically related to one of the parents;
   2. The applicants must be husband and wife, civil partners or in an enduring family relationship;
   3. The application must be made within six months of the child’s birth;
   4. The child’s home must be with the parents and they both must be domiciled in the UK;
   5. The surrogate (and her husband if married) has consented to the making of an order with the consent being given six weeks after the child’s birth;
   6. The expenses are those “reasonably incurred”

7 – If all the above is satisfied, the court will go on to make a parental order. It is only at this point the parents are granted legal rights over their child.

• The court can ask questions about expenses especially if a lot of money has been spent on the arrangement. This can be complicated and sometimes requires documents being collated to evidence what has been paid for
• If the surrogate has remained anonymous in the arrangement, they may not want to fill in forms confirming consent
• When a child is born abroad, they don’t automatically get the same immigration status as the parents. This means the child can’t leave the country they are born in, and there can be a wait in the country whilst an English passport is granted so the child can return to their intended home
• Cafcass will look into the child’s welfare and may have questions about what the arrangements will be for the child
• Court proceedings can be a difficult concept to grapple with for parents, and it can be a lot to understand during a pinnacle moment in their lives