What is a parental order and am I eligible to apply?

What is a parental order?

In England and Wales the surrogate will be the legal mother of the child at birth.

A parental order is the bespoke legal solution in England and Wales for the intended parent(s) to become the legal parent(s) of the child born via surrogacy. The making of the parental order will permanently end the child’s legal relationship with the surrogate and their spouse/civil partner and reassign legal parenthood to the intended parent(s).

A parental order is applied for after the birth of the child. There is therefore a period between the birth of the child and the making of the parental order in which the child is living with the intended parent(s), but they may not yet be legal parents or have parental responsibility for the child.

Requirements for making a parental order application

The legal requirements for making a parental order are at Sections 54 and 54A the Human Fertilisation and Embryology Act 2008.

• 1. The child must be carried by a woman (i.e. the surrogate) who is not an intended parent as a result of IVF or artificial insemination.
• 2. At least one of the intended parents must have a genetic link to the child (i.e. their sperm or eggs must have been used). It is not possible to apply for a parental order where both donor sperm and eggs (or the surrogate’s eggs) have been used. The intended parent(s) would instead need to make an adoption application.
• 3. The intended parents must be married, in a civil partnership or in an “enduring family relationship”. The meaning of “enduring family relationship” has been given a wide interpretation by the court. It is also possible for a single intended parent to apply for a parental order.
• 4. The parental order application must be made within 6 months of the child’s birth. In practice the court will frequently make parental orders where the application is made more than 6 months after birth, if in the best interests of the child.
• 5. The child’s home must be with the intended parents at the time of the application and when the parental order is made. Again, this has been given a wide interpretation by the court.
• 6. One or both of the intended parents must be domiciled in the UK.
• 7. The intended parent(s) must be aged 18 or older.
• 8. The surrogate and her partner must consent freely, unconditionally and with a full understanding of what is involved. The surrogate’s consent must be given at least 6 weeks after the birth of the child, and consent given before the child is 6 weeks old is invalid. The court has no power to make a parental order if the surrogate does not consent to the order being made. In exceptional circumstances where the surrogate cannot be found or is incapable of giving consent, then the court may waive the requirement for consent to be obtained.
• 9. The surrogate should receive no money or benefit other than “reasonable expenses”. Typical payments are in the region of £10,000 to £15,000. In 2019 the median average of payments to surrogates in domestic arrangements was £14,795. Reasonable expenses have been interpreted generously by the courts and may include:
  • additional dietary requirements relating to pregnancy;
  • travel and accommodation costs linked to the surrogacy arrangement;
  • pregnancy related items (e.g. maternity clothing);
  • medical costs; and
  • loss of the surrogate’s earnings as a result of the pregnancy.

If you are considering surrogacy as a way of building your family, or if you are considering becoming a surrogate, then get in touch with the Blake Morgan family team.