Parental Orders after Surrogacy

The application for a parental order after surrogacy is regulated by strict conditions. The written surrogacy agreement could cause issues when the intended parents apply for the parental order. It is therefore advisable for the intended parents to instruct an expert solicitor in England even before they sign the final version of the surrogacy agreement. This way they can obtain advice on whether any clauses in the agreement would provide a problem. While English solicitors probably cannot advise on arranging the surrogacy, they can at any time advise on the later parental order application. With the benefit of this advice you should then be able to renegotiate any clauses which could cause a problem later on in a court application.

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The Conditions for a Parental Order Application

The conditions for a parental order are as follows:

  1. The child was born to a surrogate as a result of placing into her either an embryo or sperm and eggs or her artificial insemination, in other words not following intercourse.
  2. The applicants for the parental order are married, in a civil partnership or other opposite-sex or same-sex couples.
  3. The genetic material of one of the intended parents has been used to create the embryo. The court may require a DNA test to prove this.
  4. The application is made within 6 months of the date of the birth.
  5. The child lives with the applicants at the time of the application and at the time when the order is made.
  6. At the time of application and the time the order is made, either applicant (or both) are domiciled in a part of the UK (England and Wales, Scotland or Northern Ireland) or the Channel Islands or the Isle of Man.
  7. Both applicants are at least 18 years old.
  8. The surrogate and her husband or civil partner, if there is one, (as the legal father or “the other parent” of the child) have to have consented and they must give their consent at least 6 weeks after the birth to give them a cooling-off period.
  9. The court must be satisfied that no money or other benefit, other than “expenses reasonably incurred” has been given or received by the applicants for:
    1. making the order;
    2. the surrogate’s or her husband’s or civil partner’s agreement to the parental order;
    3. the handing over of the child;
    4. the making of any arrangements with a view of making the parental order.

However, the court can authorise a payment retrospectively and may do so under certain circumstances.

Although the conditions are expressed in strict terms and it was thought that, for example, the 6-month time limit could not be extended, the courts have followed case law in other areas and allowed applications after the end of the 6 months in cases because the child’s welfare demanded this. This does not mean that you can simply sit back and apply at your leisure because the court has to find that such a case warrants this specific waiver of the time limit. Whether other criteria can be waived remains to be seen.

Reasonable Expenses

Of course the amounts that have actually been paid to surrogates have increased over the years with inflation, but especially in cases where the surrogate lives in Western Europe or North America, the payments have been above what some may regard as reasonable expenses. Even elsewhere they are probably more than what are reasonable expenses, but because they do not seem much by comparison to UK costs of living, this has probably not been an issue. However, the court authorises payments retrospectively if they are not disproportionate to reasonable expenses.

Welfare of the Child

The other considerations which the court has to take into account are the welfare criteria from the Children Act and, because it is compared to adoption, not just whether making the order would be in the best interests of the child during the child’s minority, but for the lifetime of the child. Thus, even if there are other orders the court could make to achieve that both intended parents get parental responsibility while the child is under 18 (for example, by way of a child arrangements order that the child lives with them), a parental order has the added benefit that it actually creates a legal kinship for the rest of the life of everyone involved and beyond. Provided there are no extraneous circumstances, there is no question about the child growing up with anyone else. Therefore, in practice it is difficult to see why the court should not make a parental order and retrospectively authorise a payment which goes beyond reasonable expenses as this is almost always in the child’s interest.

In the 2008 case of Re X and Y Mr Justice Hedley said:

“The difficulty is that it is almost impossible to imagine a set of circumstances in which by the time the case comes to court, the welfare of any child (particularly a foreign child) would not be gravely compromised (at the very least) by a refusal to make an order.

Procedure

The application is made in the local Family Court and there is a short form for this. It must be made within 6 months from the birth. International cases should be transferred to the High Court.

The court will then usually immediately arrange for an officer from CAFCASS to prepare a report. They are called parental order reporters for this purpose. The reporter should visit you at home and talk to both of you. Their task is to report to the court on whether the conditions set out above are met and also to see that it is in the child’s welfare interest to make the order. The time this takes will depend on how busy the CAFCASS officers in the local area are and it could take anything from 3 to 6 months. This investigation is a lot less intrusive than the investigation the local authority would make on an adoption, because the remit is much more focused. Moreover, CAFCASS are used to preparing reports on child arrangements after separation, which is a lot more limited than the reports that social services normally do when they assess parents who are incapable of looking after their children.

Another way to make life easier for the CAFCASS reporter and to ensure that the case gets off on the right footing is to prepare very detailed statements for both the intended parents and the surrogate (and her husband, wife or civil partner, if she has one) at the beginning, before issuing the application. This means that the CAFCASS reporter will read them before undertaking any work themselves. This means instructing an expert solicitor early to ensure that the statements are clear and comprehensive.

For advice on your specific circumstances please contact a solicitor

13 August 2015 by Andrea Woelke