There are two types of surrogacy’s including partial and traditional surrogacy.
Partial surrogacy involves the surrogate mother’s egg. The commissioning father will donate his sperm in a partial surrogacy and therefore be genetically related to the child too. The commissioning parents are the couple who enter into the arrangement with the surrogate.
Conversely, in a traditional surrogacy the surrogate mother is merely a gestational mother as she carries no genetic ties with the child. Traditional surrogacy is created in three situations; one where the commissioning parents egg and sperm is donated; two where a donar egg and father’s sperm is used and finally where a donar egg and donar sperm is used.
Who is the child’s mother? The surrogate mother will remain the child’s legal mother unless an adoption order or parental order by the court is made. The surrogate mother cannot abandon her parental responsibility until such an order is made. If the surrogate mother is married then her husband is automatically considered the father of the child.
The commissioning father who has donated his egg is the genetic parent but does not acquire parental responsibility by virtue of this until an adoption order or parental order is made. If the surrogate mother is not married, the commissioning father who is genetically related will be treated as the legal father but this does not give the commissioning father parental responsibility.
The non-biological mother does not acquire parental responsibility or legal parenthood until an adoption order or parental order is made.
How can the commissioning parents acquire parental responsibility? A parental order confers legal parenthood and parental responsibility on the commissioning parents. The purpose of a parental order is that by law the child is deemed to be the child of the commissioning parents for all purposes and not the child of any other person. A parental order is lifelong and the bar to set aside a parental order is very high.
What are the pre-conditions of a parental order?
A parental order requires genetic material to be donated from at least one parent making the application. The child must also be residing with at least one commissioning parent and at least one of the commissioning parents must be domiciled in the UK.
In support of the application the commissioning parents will need to produce a DNA test and the child’s birth certificate. An application for a parental order must be made within six months of the child’s birth. Prior to 2014 there was a fundamental assumption that the court had no power to extend the six month time limit, but in a 2014 case the time limit was extended to 20 months because the making of a parental order was deemed in the best interest of the child.
Since that case there have been a number of other cases where the six months time limit has been extended as far as a 7 years. Applications will be assessed individually by the court and the court will base its decision upon whether the parental order is deemed to be in the best interest of the child.
The commissioning parents will also need to obtain a free and unconditional agreement from the surrogate mother with her full understanding of the parental order being made. The agreement must be obtained no earlier than six weeks after the birth of the child.
If the surrogacy has taken place outside the UK, the afore-mentioned agreement should be witnessed by an authorised person such as a notary public or British consular official. Any orders made outside of the England are not enforceable or recognised and therefore the commissioning parents are required to make an application for a parental order in England following the above steps.
Additionally specialist immigration advice should be taken prior to entering a surrogacy arrangement oversea.
All publication correct at the time of publishing.
If you have any questions about any issue involving surrogacy, please do get in touch with a member of Neves’ Family department.