When a child is born to a surrogate mother the initial position is that the surrogate mother and her husband (if she is married) are the legal parents with parental responsibility regardless of their genetic relationship to the child.
This can be resolved by a parental order which transfers legal parenthood, and with it parental responsibility, from surrogate parents to the ‘commissioning parents’. The commissioning parents are the couple who instigated the surrogacy with a view to raising the child and provided the eggs, sperm or both for the pregnancy.
In order to qualify as commissioning parents, and thus be able to obtain a parental order, a number of criteria must be fulfilled:
- The commissioning parents must have a genetic relationship to the child. That is to say they must have provided the egg, sperm or both for the pregnancy.
- The child must be living with the commissioning parents at the time of the application.
- At least one of the commissioning parents must be living in the UK at the time of the application.
- The commissioning parents must not have provided financial assistance, beyond reasonable expenses, to the surrogate mother in exchange for her role.
The rule limiting the size of payments to the surrogate mother has provided the courts with some difficult cases in which children would have been put into the care system had it been strictly enforced. As a consequence, judges have given significant weight to the fundamental principle of the welfare of the child and declined to enforce the rule where doing so would not be in the interests of the child.
Consent must be obtained from the surrogate parents (this can be done on a court form which must be correctly witnessed) no earlier than 6 weeks after the birth of the child. Once this has been obtained, the parental order must be made no later than 6 months after the child’s date of birth. These time limits are also subject to the court’s overall consideration for the welfare of the child and the courts have declined to enforce them where it would not be in the best interests of the child to do so.
Parental orders are distinct from adoption orders because they are only available to prospective parents who have a genetic connection with the child. Further, the parental relationship created by a parental order does not extinguish when the child reaches adulthood, in contrast to an adoption order which is impermanent.
The outcome of a successful parental order is that the child is issued with a new birth certificate naming both commissioning parents as legal parents of the child. Once this process has been concluded no legal connection between the surrogate parents and the child remains.
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