Surrogacy news: single applicants can apply for parental orders
As a London family solicitor, I have always thought it strange that the law did not allow a single applicant to apply for a parental order after a successful surrogacy arrangement.
However, some good news. Single parents who have had a child born through surrogacy are now able to apply for a parental order in the UK.
This is because the Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018 has been implemented. Prior to this only joint applicants could apply for a parental order. Top London Family Solicitors have welcomed the new law.
Deadline for existing single parents to apply for a parental order
If you are an existing single parent of a child born through a surrogacy arrangement and you were not able to secure a parental order as a single person, you now have until early July 2019 to apply for a parental order.
If you do not meet this deadline and you are the existing parent of a child born through surrogacy, it may still be possible to secure a parental order but the process will be more complicated. The advice from the best London Family Solicitors is to review your legal options now.
A parental order means that you are legally recognised as their child’s parent. The parental order will extinguish any legal rights and responsibilities their surrogate parent had.
How can OTS Solicitors help?
To speak to Jordana Adams or to a member of the London based OTS solicitors children and family law team about parental orders and surrogacy arrangements, please call us on 0203 959 9123 for an initial discussion about how we can help you.
The background to the change in UK surrogacy law
Surrogacy law was introduced in the UK in 1985. In just over 30 years, society’s views on family life have come a long way, though campaigners would say there is still a long way to go to achieve equality and fairness for all parents and would be parents.
When the UK first legalised surrogacy it provided for parental orders as the means to transfer all parental rights from the birth to the surrogate parents. Until now, only couples in enduring relationships could apply for parental orders.
Reasons behind the change in UK surrogacy law
The UK surrogacy law was changed using a remedial order.
The changes came about after Sir James Munby, the former president of the high court family division, said surrogacy laws that did not allow single applicants to apply for parental orders were not compatible with a person’s right to family life under Human Rights legislation.
The court case involved a single male applicant who said that the law, which prevented him from becoming a legal parent through surrogacy, was incompatible with his right to family life under the Human Rights Act 1988. The applicant also said the surrogacy legislation was discriminatory as single people are able to have children through adoption, IVF or donor conception, but not surrogacy. The court agreed with the applicant’s legal arguments.
The surrogacy campaign for reform in the law continues
The campaign for changes in UK surrogacy law is not over.
The recent change in law allows a single applicant who is genetically linked to the child to apply for a parental order. At present, the law still does not allow applicants who are infertile and therefore have no genetic link to the child to apply for a parental order. Campaign groups are seeking a further change to the law.
Surrogacy laws – who is the parent of a surrogate baby?
Under English surrogacy law, the surrogate mother is the legal mother of the child even if she has no genetic connection to the child. This is only changed if a parental order or an adoption order is made.
If the surrogate mother is married or in a civil partnership, then her husband or civil partner is the legal second parent of the child if he or she agreed to the surrogacy arrangement.
If the surrogate mother is unmarried it is possible for the intended father to be the legal father if he is the genetic father or if he is nominated as the other legal parent when the child is born.
Applying for a parental order
In order to obtain a parental order, an applicant needs to meet a number of conditions:
• The application must be made within six months of the child’s birth (different rules apply to single applicants who have an existing child through surrogacy – they need to apply for a parental order by early July 2019); and
• The surrogate mother must consent to the parental order. She must understand that she will be giving up parental rights to the child;
• No payment should have been made to the surrogate mother save for what are termed “necessary reasonable expenses”. The court is able to exercise discretion and give retrospective approval to payments if they exceed reasonable expenses; and
• There must be a genetic connection between the child and at least one of the applicants for the parental order; and
• At the time of the parental order application and the making of the court order, the child’s home must be with the applicants; and
• Either or both of applicants must be domiciled in the UK.
Parental responsibility and surrogacy
If an applicant obtains a parental order, the parental responsibility of the surrogate mother is extinguished. The applicants have full legal responsibility for the child under English law.
How long does a parental order last?
When a court is deciding whether to make a parental order the judge has to take into account a statutory checklist.
A parental order is a bit like an adoption order. The order lasts beyond the child’s minority. It lasts for the lifetime of the child.
The court therefore has to consider whether making the parental order would be in the best interests of the child during his or her lifetime.
Even if there are other court orders, a judge could make to enable the intended parents to get parental responsibility while the child is under 18, a parental order has the benefit that it creates a legal relationship for the rest of the lives of the applicant/s and child.
The best London children solicitors recommend that intended parents take legal advice on their options, including the possibility of applying for a child arrangements order.
Applying for a parental order
The application for a parental order is sent to the local family court.
The court will normally ask an officer from the Child and Family Service to prepare a report. They are known as “parental order reporters”.
The reporter’s job is to report to the court on whether the conditions for a parental order are met and whether it is in the child’s interest to make the order.
Surrogacy laws and payments
Although it is not illegal to pay a surrogate mother for her services, if a parental order application is made, the court needs to authorise any payments that exceed the expenses that the surrogate mother reasonably incurred.
The court will consider carefully the payments made and the level of those payments. If payments have been made, it is prudent to take legal advice from a top London family solicitor before applying for a parental order.
How can OTS Solicitors help?
Surrogacy arrangements are increasingly common. If you are thinking about having a child through a surrogate mother it is important to get specialist surrogacy law advice from a top London family solicitor about applying for a parental order.
To speak to Jordana Adams or to a member of the London based OTS solicitors children and family law team about your questions on surrogacy arrangements and parental orders please call us on 0203 959 9123 for an initial discussion about how we can help you.