The law in the UK in relation to Surrogacy Arrangements is very different to that in the US. This has led to many UK couples going abroadwhere like the US, a much more liberal approach is taken. For example, some states will allow intended parents to be named on the birth certificate as the legal parents immediately or to have pre-birth orders; the surrogacy agreement is a legally binding contract and monies can exchange hand over and above reasonable expenses.
However, whilst this may sound like a more attractive option than the UK – the reality is if you live in the England or Wales then English Law will still take precedence over foreign law when you return. This then means that the original complications you were trying to get away from will still apply, but could be even more complex mixing in the foreign rules.
In some cases , if not carefully planned, this could result in one or both intended parents having no legal status under English Law as a parent. It is for this reason that it is important to obtain legal advice specific to your circumstances prior to entering into any surrogacy arrangement both in the USA and in England to ensure that the outcome you wish can be achieved.
In order to obtain parental status in England following a surrogacy arrangement it will be necessary to apply to the Courts for a Parental Order. Until you do this under the UK laws, the surrogate is still the legal parent and the non-biological intended parent has no legal status. As such the risk is in the event of sickness the surrogates approval would be required for medical procedures and in the event of death of the biological parent the intended parent would have no legal status over their child.
On the making of a Parental Order a new UK birth certificate is issued naming you both the intended and legal parents of the child. This confers all associated rights and responsibilities in respect of the child to you here in the UK. Irrespective of what the law says in the country in which the child is born, the surrogate mother will be the legal mother until the Parental Order is granted and extinguishes her rights, which is something you must fully understand and be aware of the consequences of this.
Who can apply for a Parental Order
From 6 April 2010, unmarried couples can now also apply for a Parental Order. This extends further to couples who are in a same sex relationship whether, married, in a civil partnership or cohabiting.
The Application and criteria for applying for a Parental Order
As mentioned above, the application for a Parental Order is regulated by very strict conditions. Therefore, in order to apply for a Parental Order the following criteria must be met:
The Applicants (Intended Parents):
- Must be at least 18 years old.
- Must be married, civil partners or cohabiting in an enduring relationship. This includes same sex couples, though after the case of Re Z (no.2)  this is expected to change.
- At least one of the Intended Parents must be the biological parent.
- At the time of the application and the time the order is made, either Intended Parent (or both) are domiciled in a part of the UK (England and Wales, Scotland or Northern Ireland) or the Channel Islands or the Isle of Man. Domiciled meaning residing on a permanent basis.
- The child must be born to a surrogate as a result of conception taking place through artificial insemination. In other words, not following intercourse.
- The child lives with the applicants/intended parents at the time of the application and at the time when the order is made.
- The surrogate and her husband/wife or civil partner, if there is one, (this person will automatically be deemed the legal father or the “other parent” of the child) have consented to the application. The consent must be given at least 6 weeks after the birth in order to provide them with a cooling-off period.
- No more than reasonable expenses have been paid, which is our biggest stumling block in the UK when people return from the US. The US rules are very different to those here in the UK and it’s the biggest disparity that causes us issues in the UK. The Court will consider this carefully and will decide what constitutes a reasonable expense on a case by case basis. The courts are careful to give this a high level of scrutiny before retrospectively approving any which fall outside this scope, but recent cases have been made clear that the interests and welfare of the child will be paramount. Again, as your advisors, we will help you through this process and ensure you receive all the advice you need to navigate the path to success.
- Must be made within 6 months of the birth of the child. There is very little scope for this to be overlooked, so you are encouraged not to miss this deadline.
It is therefore important to ensure that all the above criteria are met before you proceed with the making of the application and we would advise that you seek independent legal advice to ensure that you avoid any potential pitfalls.
Other issues to consider
Citizenship and Immigration
A further factor and one of paramount concern is whether the parents will be able to bring the child back to the UK. We would however advise that you seek specialist immigration advice.
It is important to note that surrogacy agreements are not enforceable in the UK Courts. This therefore means that if you enter into a Surrogacy Agreement it is not legally binding and the Court can overrule the contents of such an agreement.
In practice, the family courts have proved sympathetic to the intended parents applying for a Parental Order and can take into consideration the terms of the Surrogacy Agreement so it still worth entering into one with your Surrogate to be clear on the terms. Such an agreement can help to iron out any difficulties from the start and ensure that all parties are starting from the same position.
Our online face to face conference can explore all of this with you directly. We will help you prepare for the arrangements ahead so that when you are ready to return to the UK, with your new born baby, we are here ready and prepared to apply for your parental order. With preparation you can avoid the stumbling blocks and court issues so you face a steam lined application
Please note your paid consultation will be deducted off your total bill, if you choose to instruct us going forward as part of our on-going commitment to our clients to have them prepared before they embark on their journey.