More and moreUK couples are travelling to Canada for their surrogacy arrangements. There are many reasons for this, costs and availability amongst them, but mainly the more altruistic approach and tighter regulation on expenses give it substantial synergy with English law , which in turn creates a more streamline process for when you return home.

Often when returning to England, couples who have undergone overseas surrogacy arrangemrnts, still encounter complications due the laws that in the UK don’t often harmonize with those overseas. It is very important that if both parents reside in England or Wales and are returning here to raise their child, you understand ,English Law takes precedence over foreign law – meaning if you do not do things in accordance with the rules and regulations here your status as a parent may be impacted.

So prior to entering into any surrogacy arrangement in Canada or elsewhere it is vital you seek the proper advice.

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.  On the making of a Parental Order a new UK birth certificate is issued naming you the intended parents as the legal parents of the child and therefore conferring 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. Until you have a parental order there is a risk that the non-biological parent has no or very restricted rights over their child and so in the event of death or sickness custody and medical authorities can be limited.

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) [2016] 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 Arrangement:

  • 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 to the surrogate mother for the arrangement.  This is the most common pitfall we find on application where the surrogacy has been handled overseas, but less so in Canada as they have very similar rules and proceedures. 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. We will help you understand what is reasonable, how to evidence and document this, what if any would be of concern and how we would address that back in the UK.

The Application:

  • 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.

Surrogacy Agreements

It is important to note that surrogacy agreements are not enforceable in the UK Courts.  This 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.