Who are the parents during and after a surrogacy?
In the UK, the legal relationship between parents and a child born via surrogacy can be fairly complex and is governed by several laws. In the UK, a child can only have two legal parents at any one time, regardless of biological or social relationships – these can be a mother and father, two mothers or two fathers. Therefore, in a surrogacy arrangement, the “parents” involved are divided and referred to as “the legal parents” and “the intended parents.”
Who are the parents during surrogacy?
The surrogate mother (the woman who carries and gives birth to the child), is a legal parent, and she is legally recognised as the birth mother at the time of the birth. This is regardless of the genetic relationship to the child, meaning that it does not matter if the surrogate is the biological mother or not.
If the surrogate mother is married at the time of conception, the law assumes her spouse (husband or wife) is the second legal parent of the child, regardless of genetic relation, unless they did not consent to the surrogacy arrangement. If the surrogate mother is not married (or in a civil partnership) and the surrogacy involves sperm donation by one of the intended parents, then the sperm provider is recognised as the legal father at birth.
The individuals who intend to raise the child after the birth, and who usually have a genetic connection to the child (either though egg or sperm donation) are referred to as the intended parents.
Who are the parents after the birth?
After the child is born, the surrogate mother continues to be considered as the legal mother and will have parental responsibility for the child. To transfer parental rights from the legal mother to the intended parents, various steps must be taken:
The Intended Parents need to apply for a Parental Order from the Courts to become the legal parents of the child after birth. This order can only be applied for if:
- the child was born through surrogacy and the intended parents were not the ones who gave birth.
- at least one of the intended parents is genetically related to the child (either through sperm or egg donation).
- the application is made within six months of the child’s birth.
- the child lives with the intended parents.
The surrogate mother can only give consent to a Parental Order after the child is born, and not before. The earliest time a surrogate can give consent is six weeks and one day after the child is born. This six week period is designed to give the surrogate time to recover from the birth and to make a fully informed decision, free from any pressure. It is also important to note that if the surrogate mother is married, her spouse can block the intended parents from becoming legal parents if they do not formally consent.
What are the effects of a Parental Order?
Once a Parental Order is granted, the intended parents are legally recognised as the child’s parents and the surrogate mother is no longer recognised as the legal mother. This means that the intended parents have all the rights and responsibilities associated with being the child’s legal parents. The child’s birth certificate is amended to reflect the names of the intended parents, rather than the surrogate mother (and her spouse of this applies in the circumstances).
International surrogacy
The process can be more complicated if surrogacy occurs outside the UK, as international laws differ. Each international case will be unique, and the parents may need to go through additional legal processes, including applying for a Parental Order in the UK upon the child’s return.
It is very important for anyone considering surrogacy in the UK to understand these legal steps and, where necessary, consult with a specialist in family law to navigate the complexities of surrogacy arrangements.
