A parental order is the bespoke legal remedy for families who have pursued surrogacy in order to have a child. Due to our outdated laws in the UK, no matter what the background of your surrogacy arrangement, the surrogate will be treated as the legal mother of your child from birth.
In addition, if she is married, her husband will be given automatic status as the legal father, ousting your position entirely. These rules operate irrespective of your genetic connection with your child and apply even if you have a foreign birth certificate or court order that names you as the parents.
In order to fix this awkward and unintentional effect of the law, intended parents must apply post-birth for a parental order which, similarly to adoption, will extinguish the parental status of your surrogate (as the birth mother) and her husband (if applicable) and reassign it to you fully and permanently.
The parental order goes one step further than adoption since the General Register Office will, on receipt of the court order, issue a new birth certificate for your child naming you as the parents. This will supersede the previous version and will not feature any details of the surrogacy context.
The process to get a parental order will vary depending on where your arrangement took place. If you worked with a UK surrogate on a largely altruistic basis you should expect a relatively straightforward family court application with little paperwork, a couple of hearings and a home visit from a court reporter.
If you have entered into an arrangement abroad and, by default, paid your surrogate compensation in addition to expenses you should expect a High Court application. Whilst the requirements in terms of documentation and level of scrutiny here are much more rigorous, this is a common application for which hundreds of parental orders are made every year.
Preparation and early legal advice is key to ensuring any parental order application is dealt with and proceeds as smoothly as possible. You may choose to represent yourselves in court or have support from a solicitor and barrister.
In order to make an informed decision about which option is best for you, you should seek advice from an experienced solicitor who can explain clearly how the law applies to your particular arrangement, the associated court process and the different ways in which this application can be managed.
For further information, please contact our fertility and parenting specialist solicitor, Nicola Scott.