“I wanted to help someone” Claire Kelly, a surrogate in a recent interview with BBC Scotland. Helping other people to become parents by acting as a surrogate for them has become a "passion" of hers.
Under UK law, the surrogate is the legal mother of the child she gives birth to, albeit that she does so pursuant to an agreement with the intended parents (i.e. according to an agreement made with the intended parents).
The surrogate has legal responsibility for that child, up until the transfer of legal parenthood to the intended parents. This is true even if the intended parents’ or donor’s gametes (egg cells or sperm) were used to create the embryo or to conceive the child.
If the surrogate has a spouse or civil partner at the time of insemination or embryo transfer, her spouse or civil partner will be the legal father or second parent to that child. This is the case unless there is a judicial separation or a separation order in force, or it is shown that the spouse or civil partner did not consent to the placing of sperm or embryo(s) (as the case may be) in the surrogate.
For one or both of the intended parents to gain the legal parental responsibility of the baby, they need to apply to the court for a Parental Order.
When the surrogate and the intended parents are UK citizens, the Parental Order application can be heard at the local family court. However, where there is an international element to the surrogacy arrangement, the case must be heard at the High Court in a formal proceeding.
Once a Parental Order has been granted by the court, this will permanently extinguish the surrogate’s (and her partner’s) legal parenthood and parental responsibility over the child in question.
However, obtaining a Parental Order is not simply about filling in forms, there are a number of requirements which must be met before a Parental Order will be granted, as follows:
- At least one intended parent must be domiciled in the UK or in the Channel Islands or the Isle of Man. Therefore, in circumstances where intended parents are domiciled abroad, even where the child in born in the UK, the intended parents will not be recognised as the legal parents of their child born through surrogacy, under UK law. The surrogate (and her partner, if she has one) will continue to be the legal parent(s) of that child. Whilst the intended parents’ inability to obtain a Parental Order from the UK courts is unlikely to affect their ability to become the legal parents of the child under their own country’s domestic law, this will depend on that country’s law;
- The intended parents must have attained the age of 18 when making the application;
- At least one intended parent must be biologically related to the child i.e. at least one of the intended parents’ gametes (i.e. egg cells or sperm) must have been used to create the embryo transferred to the surrogate (see “Some helpful definitions” for more info about different surrogacy arrangements);
- The baby must be living with the intended parent(s) at time of application;
- The surrogate (and her partner, if she has one) must consent to the granting of the Parental Order, with full understanding: this consent is provided by submission of the A101A form;
- The court must be satisfied that the surrogate has only been paid ‘reasonable expenses’ (although no upper limit is specified in law), and the amount paid must be authorised by the court;
- The application for a Parental Order must be made between 6 weeks and 6 months post-birth.
In the UK, same-sex couples and single parents, as well as heterosexual couple, may legally apply for a Parental Order. Until recently, it was the case that a single intended parent could not apply for a Parental Order, and only couples were eligible.
However, a long-awaited change to UK law came into force in January 2019, enabling single people to apply for a Parental Order. The change in law means that single people are no longer discriminated against and they can now apply for a Parental Order on the same basis that a couple can, as long as they are genetically related to the child.
Importantly, when considering an application for a Parental Order, the court’s paramount consideration is the welfare of the child.