Parental Orders – Surrogacy and Same Sex Parents

The law, in England and Wales which governs surrogacy, is the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008.

Where a child is born via surrogacy, the surrogate is recognised as the mother. If the surrogate is married, then her husband would be considered the Father. If not married, then the biological father would be deemed the Father; whilst not necessarily acquiring Parental Responsibility.

In order to become legal parents the intended parents must make an application to the Court for a Parental Order. A Parental Order effectively legally reassigns parental rights and responsibilities to same sex couples.

Legal advice should be sought at the earliest opportunity in respect of an application for a Parental Order as complications can arise.

For example, if a Parental Order is not obtained, then those who intend to be the child’s parents would not be the child’s legal parents.

In the absence of a Parental Order, those intending to be the child’s parents would have no Parental responsibility for the child.

In the absence of Parental responsibility, the intended parents would be unable to make those important decisions parents make, such as those relating to medical care and education.

How do you apply for a parental order?

In order to be able to apply for a Parental Order the intended parents must pass certain criteria

1. The applicant or applicants must be either married or in a civil partnership or an enduring family relationship.
2. At least one of the parents must be biologically related to the child
3. The Application must be made within 6 months of the child’s birth
4. The Surrogate must agree with the application unconditionally and provided consent at least 6 weeks following the birth of the child

We provide advice and support when looking to obtain a Parental Order

If you require advice and support in respect of an application for a Parental Order then please do not hesitate to contact the Family Law Team at Browell Smith & Co.