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A surrogacy arrangement is an arrangement made prior to pregnancy where a woman carries a child in a situation where the child will be handed over to, and parental responsibility will be met by, someone else.
The arrangement must have been made before any fertility treatment takes place, so it is important to have paperwork to show this from your clinic.
Surrogacy agreements and contracts
Surrogacy contracts are not enforceable in the UK law, even if you have a signed contract with your surrogate and have paid for expenses.
Payment of money to a surrogate is permitted for reasonable expenses only. It is very important that a detailed schedule of expenses is kept. If you have any concerns about whether a payment is an expense you should take advice. A commercial surrogacy arrangement is a criminal offence.
Who are the parents?
The woman who gives birth is always treated as the mother and has the right to keep the child – even if not genetically related. The child’s legal father or second parent will be the birth mother’s husband or civil partner unless they did not give their permission to the treatment. If the birth mother has no partner or is not married or in a civil partnership the child will have no legal father or second parent.
If neither you or your partner are genetically related to the child or if you are single, you can become a legal parent by adoption. A registered adoption agency must be involved in the surrogacy process.
If you or your partner was a sperm or egg donor in the surrogacy you can secure legal rights with a parental order. This will transfer legal rights from the birth mother to you and your partner.
Applying for a parental order
To apply for a parental order, you must:
- be genetically related to the child
- have the child living with you
- live permanently in the UK
You must make the application before the child is 6 months old.
The same process applies whether you have used a surrogacy clinic in the UK or overseas.
The process of applying for a parental order is as follows:
- Fill in the application for a parental order and send it to the Court with the child’s birth certificate and the Court fee
- The Court will set a hearing date and provide the form you must give to the birth mother
- A hearing will be listed to deal with the statements and evidence you will need to provide and a Parental Order Reporter will be appointed to prepare a report for the Court about whether a parental order should be made
- Once the Court has all of the evidence and a report, a decision will be made at a final hearing whether to grant a parental order.
The birth mother and anyone else who is a parent of the child must agree to the parental order in writing.
The Parental Order Reporter will check the criteria for a parental order above, the payments that have been made for expenses, that the consent of the birth mother is unconditional and will meet with you and the child.
You should seek legal advice about:
- What information to include in your application
- The documents you will need to provide to the Court
- What information to include in your statement.
Your lawyer can also help you prepare for the Court process and your meetings with the Parental Order Reporter.
Becoming a parent through fertility treatment
If you are married or in a civil partnership before receiving fertility treatment in the UK, your partner will automatically be the legal parent unless they indicate they do not consent to the treatment.
If you are an unmarried couple conceiving with donated sperm or embryos at a fertility clinic in the UK, then your clinic will provide the treatment and follow the process to ensure you both become the legal parents of your child.
The birth mother is always the child’s legal parent but if you don’t consent properly to legal parenthood your partner or co-parent may need to go to court to adopt your child. This is the case even if you are in a female same sex relationship and your partner is donating her eggs to you for your treatment or if you are not in a relationship with one another but have decided to co-parent.
Consent must be given before your treatment (before the sperm is inseminated or an embryo is transferred).
Being a legal parent is important. It means you can be registered on your child’s birth certificate. If you are not named on your child’s birth certificate, you will not have the right to make important decisions about things like their schooling, medical treatment and religious upbringing.
To become a legal parent you need to:
- Be provided with information about what being a legal parent means
- Be provided with an opportunity to have counselling to understand fully the implication of being a legal parent
- Give consent in writing. The birth mother must complete WP Form – consent to your partner being the legal parent. The other parent must complete PP Form – consent to being the legal parent
The HFEA suggest you ask yourselves these questions before going ahead with treatment to make sure your partner will be the legal parent:
- Are you clear about whether you and your partner need to provide consent to parenthood?
- Have you received information about parenthood and the implications of providing consent from your clinic?
- Have you been offered the opportunity for counselling?
- Have you carefully read and understood the WP and PP consent forms?
- Have you and your partner properly filled in the forms? It might seem obvious, but make sure you’ve entered your personal details correctly, filled in all the sections and clearly ticked the box confirming your consent. Make sure you’ve signed and correctly dated the bottom of each page too.
- Have you completed the forms before treatment?
- Has your clinic given you a copy of your completed WP and PP consent forms for your personal records? You should keep these in a safe place.
What happens when fertility clinics make mistakes?
If there are paperwork mistakes or errors in the process it is possible that there may be a problem with a parent’s legal status. This can range from lost forms, wrong forms or missing details or signatures. Remember the forms must show consent to becoming a legal parent before treatment takes place.
The family court found a way of dealing with clear and obvious mistakes retrospectively in what become known as the ‘Alphabet cases’, making declarations of parentage confirming non-biological parents were the legal parents of their children.
If you discover a potential problem with your legal parenthood, the first step is to get some legal advice to find out if you need to make a court application for a declaration of parentage. If you do, your fertility clinic should do all it can to help you get things resolved.