c






 


 




 


  





 

 The family courts have in practice
proved sympathetic to intended parents applying to uphold a
surrogacy arrangement, but they have a 





  which means there are no
guarantees.




     
 


 


 


 
. This is
because the law says that the woman who carries a child is the legal
mother. Although this law was primarily intended to benefit mothers
conceiving with donor eggs, in surrogacy cases it means that the
intended mother has no recognition as a parent, even if she is her
child¶s biological mother.

If the surrogate is married, and conceives artificially (through IVF or

artificial insemination at home) the legal father at birth is usually the
surrogate¶s husband and this is irrespective of the biological
relationships.  





      

This applies unless it can be
shown that her husband did not consent to the surrogacy
arrangement. [Compare to Mary and Denise ë intended parties have
no automatic claim to legal parenthood, IRRESPECTIVE of biological
relationships]

Although it is  



 








    



  

 
 


  



 
 




 
 [Contract hasn¶t been fulfilled? Hasn¶t come into effect
when offer was withdrawn before respondent¶s acceptance became
effective/no intention to create legal relations] Doing this is likely to
complicate your situation and your court application rather than to
make things easier.

 
 


 




 
 

 

 





 
 

 !



  



! 

 




The 


 
  




 

 



 



 
 If you are conceiving at a licensed clinic in
the UK, you may need to take extra steps before conception to ensure
the intended father¶s status and right to be named on the birth
certificate. In some circumstances, it may also be possible to nominate
someone other than the intended father as your child¶s second parent
if action is taken before conception.

"

 





Parental orders are designed to remedy parenthood issues following
surrogacy. #$





 






!
 


  









 

  


 


 









  


 


 


, regardless of whether the surrogate is married or
unmarried. Once a parental order is made, a new birth certificate is
issued naming the intended parents and replacing the child¶s original
birth certificate, and securing the position of both intended mother and
father (or both fathers where the intended parents are a gay couple).
Even where the intended father is treated as the legal father at birth
(i.e. where the surrogate is unmarried%

 
&



  
% 
 






 


 



To obtain a parental order, all the  



 
'





'
‡? Must both be over 18 and must be 

 











  
 
.
‡? ˜ 
   

 
‡? ˜ 
   

 Channel
Islands or Isle of Man (which relates to where your permanent
roots are, rather than where you are living).




 
'
‡? The conception must have taken place artificially (which includes
home insemination).
‡? The   (
 




  
[Baby X is living with surrogate
mother since birth for about a year now]
‡? The 

 


 
  

 


 $




 



  



  !$
 [surrogate mother didn¶t give consent to making order]
‡?   



 !
 


 

 What constitutes reasonable
expenses depends on the facts of each particular case and
although in practice the courts have shown a reasonably flexible
approach, care needs to be taken.
 
'
‡? The intended parents must submit their application within six months
of the child¶s birth. c 
 





 !   
 


 



 )˜
 *+,+

 


 



 -.
*+,+
 
 

!

 [Denise and Mary can apply for parental order until
5th October 2010 ë Baby X already 6 months old]

To apply for a parental order, the intended parents must complete
/
0-, and submit it to a Family Proceedings Court (magistrates¶
court) of their choice.

On receipt of the form, the court will issue an acknowledgement form

(/
0-*) and the intended parents must give this to the surrogate
mother and her husband. The surrogate parents must sign and return
the forms to the court.

If the case is straightforward, it will be dealt with in the Family

Proceedings Court. There will normally be two hearings: at the first,
the court will appoint a parental order reporter (whose role is to
interview the intended and surrogate parents and to prepare a report
for the court) and set the timetable for the rest of the case; at the
final hearing the parental order should be granted, assuming that
there are no complications.
If there are any complications, the case may be referred up to the
County Court (or the Principal Registry of the Family Division in
London) or to the High Court. A more involved procedure then applies,
and legal advice is recommended.

¢ 
 
1
In straightforward cases, many intended parents deal with the legal
process themselves, although it can be helpful and reassuring to seek
some guidance about what exactly you need to do and what to expect.
In more complex cases (for example where one or more of the
parental order conditions may not be satisfied, or where there is an
international element), it is important to seek specialist legal advice
since surrogacy law can be immensely complex and the stakes are
high.
2

 


  1
If any of the conditions cannot be satisfied, it may not be possible to
obtain a parental order. This might apply, for example, if the six
month application deadline is missed, or if the intended parent is
single (or widowed), or if the surrogate parents do not consent.
c






 

 
 
 
 




  








¢


 

1
Many intended parents ask whether they really need a parental order,
and what the position would be if they took no legal steps to regularise
the situation.     
$





 







  
&






 

%   



  







 


(in
international cases, the position is less straightforward). 3

 


&


 




  
%  

. [Denise¶s status is
unsecured + legal 
?? Is mary the legal father/mother can this
be applied? I think it does.] This could have a number of serious
implications, including 

 










 $






 .






  

& 



 
 

 

%
 


 




 

  



 
 $

 
  
 This can cause difficulties in practice (for
example over consent to immunisations and medical treatment),
particularly where it is not practical to secure the surrogate¶s
involvement in day-to-day decisions. You are also likely to be
committing a criminal offence in caring for your child if you do not
involve social services to oversee the situation.
Remember that a parental order must be applied for within six months
of the child¶s birth, or the opportunity is lost forever.



 

As well as making sure you understand your legal position and are
prepared for the legal process you will need to go through after the
birth, it is important for all those involved in a surrogacy arrangement
to make or update their Wills in case someone dies unexpectedly
during the pregnancy, or before a parental order has been obtained.
This ensures that the surrogate and her family are protected; that the
right people have inheritance rights; and that the intended parents
achieve recognition as parents if the surrogate dies. It is also usual for
the intended parents to take out life insurance to protect their
surrogate mother¶s family in the unlikely event that the surrogate
mother were to die as a result of the pregnancy.



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