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Planning A Family Through Surrogacy? Get A Parental Order!

Posted on Tuesday 15th November 2016 by Richard Perrins

Gaining a Parental Order is absolutely vital for anyone using surrogacy to create a family.

A Parental Order determines who the child’s legal parents are: who has parental responsibility for them.surrogacy law solicitor Richard Perrins, head of the Family Law Department at Coles Miller 

Why You Need A Parental Order

Unless a Parental Order is made by a UK court, the birth mother and her husband (if they are married) are automatically the legal parents – even if they have no genetic connection with the baby.

The granting of a Parental Order will ensure that the intended parents become the legal parents of the child born through surrogacy.

It will also confer parental responsibility on the intended parents, enabling them to make important welfare decisions for their child.

Not having a Parental Order can cause major legal problems for the child. It could affect important aspects of their life including their:

  • education
  • medical care
  • inheritance rights
  • pensions
  • passport applications.

Applying For A Parental Order

Applications are governed by The Human Fertility and Embryology Act 2008. It states that:

  • Both the parents applying for a Parental Order must be aged 18 or over.
  • They must be married, in a civil partnership or in an enduring relationship. (For more information on the rules governing single parents, read this Coles Miller blog post).
  • One or both parents must have a genetic link to the child.
  • The child must be in their care at the time of the application.
  • One or both parents must be domiciled in the UK. Not simply resident in the UK – they must have been born in the UK (domicile of origin) or must have selected the UK as their permanent home (domicile of choice).

The law also makes important stipulations about:

  • Consent – the surrogate mother and her partner must agree to the making of the Parental Order. Consent must be given at least six weeks after the birth of the child (a cooling off period for the surrogate mother).
  • Expenses – commercial surrogacy is restricted in the UK. Under the law, generally only expenses may be paid to the surrogate mother – rather than a fee. However, in certain circumstances the court may authorise payment in excess of expenses if it is in the best interests of the child. This may occur in cases involving international surrogacy arrangements.
  • Immigration – this is a vital consideration in international surrogacy cases. Parents who have gone abroad to make arrangements with a surrogate mother in another country will need to make arrangements to ensure they can travel with their new child.

The application for a Parental Order should be made within six months of the baby being born.

But recent decisions in the High Court have shown that – in certain circumstances – an application outside this time frame may be considered. Read more about it here.

Find Out More

For more information, contact Associate Solicitor and Mediator Richard Perrins, Head of the Family Law Department at Coles Miller, 01202 355698.

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