The “who”, “what” and “why” of legal parenthood and surrogacy

Who are the legal parents of the child at birth?

In England and Wales the surrogate will always be the legal mother of the child at birth. This applies even if:

• the surrogate is not genetically related to the child; or
• the child is born abroad and the surrogate is not a legal parent in the country of birth. Even if the intended parents (not the surrogate) are named on the child’s foreign birth certificate, the surrogate is still the legal mother under the law in England and Wales.

The identity of the child’s second legal parent can be more complicated.

• If the surrogate is married or in a civil partnership, then their spouse / civil partner will be the child’s father or second legal parent.
• If the surrogate is not married, then the identity of the second legal parent depends on the method of conception. Where artificial insemination took place at home using the intended father’s sperm, then the intended father would be the second legal parent. Where artificial insemination took place at a licenced clinic, it may be possible for either intended parent to be the child’s second legal parent.

What is the difference between legal parenthood and parental responsibility, and why it is important?

It is only possible for two individuals to be legal parents at any one time in England and Wales. Being a legal parent is different to having parental responsibility.

Parental responsibility determines who has the right to make decisions about the child, including day-to-day upbringing, education and medical treatment. More than two persons can hold parental responsibility, including the child’s guardian, step-parents or even the local authority.

Being the legal parent of a child holds significant implications for succession, citizenship and domicile, as well as an obligation to provide for the child financially. The child has a legal relationship with not only with the legal parents themselves, but also wider family members (e.g. grandparents and siblings through inheritance and succession). Parental responsibility alone does not offer the child the opportunity to have a legal relationship with wider family members.

In a surrogacy arrangement, it is therefore important that the intended parent(s) are recognised as the legal parents of the child and are not just given parental responsibility. The bespoke solution for the intended parent(s) to become a legal parent in England and Wales is by obtaining a parental order from the court.

If you would like further information or assistance in connection with a surrogacy arrangement, then get in touch with Annabel Winsor in the Blake Morgan Family Team.