Paternity after Surrogacy
Paternity after surrogacy under English law is not determined by the surrogacy agreement but by the ordinary law on paternity in England. Since in almost all cases there will have been no sexual intercourse to conceive the child, the paternity rules are the same as the rules on paternity after other fertility treatment.
On this page you will find free information about:
Why is paternity important at all in surrogacy cases?
Some parents think that as long as they both have parental responsibility legal paternity is not important. However, it means that the child is legally not the child of his or her parent(s). This could become significant particularly later in the child’s life, when issues arise surrounding inheritance, possible inheritance tax abroad, next-of-kin status and so on. Under English law there is no scope of remedying this once the child has reached 18 and the child would then remain in a legal limbo forever.
Until a parental order or an adoption order is made, both intended parents should review their wills and the letter of wishes and similar instructions to their pension fund or life insurance policy. The wills must be drafted carefully to ensure that the child is looked after and, moreover, that in the unfortunate event of the parent and child dying at the same time or in succession, the estate does not then pass to the surrogate.
Who is the Legal Mother?
In all cases the surrogate is the legal mother as the woman who gives birth to the child. This is irrespective of who the genetic mother or the social mother of the child is.
Who is the Legal Father?
Under English law the question of whether the intended father is the legal father of the child depends on three criteria:
- Is the intended father the genetic father of the child? If he is not, he will not be the legal father of the child (unless for some reason he happens to be married to the surrogate, which is unlikely).
- In the unlikely scenario that the child was conceived as a result of sexual intercourse between the intended father and the surrogate, the intended father will be the legal father under English law. In this case it does not matter if the surrogate is married or not, but if she is, a paternity test may be necessary to rebut the presumption that her husband is the father.
- If the child was conceived, as is usual, as a result of artificial insemination or fertility treatment and the intended father’s sperm was used , the intended father is only the legal father under English law if the surrogate is not married, unless her husband did not agree to the insemination or treatment. This could, for instance, be the case where the surrogate lives separate from her husband and the husband did not even know about the surrogacy or disagreed with it. If the surrogate is married and her husband did not disagree with the insemination or fertility treatment, he is the legal father, irrespective of who the genetic father is. For conceptions since 6 April 2009 the same applies for surrogates in a same-sex civil partnership or marriage, when her wife or civil partner will be the child’s second parent and the child will have no father.
In practice this means that English intended parents should never choose a surrogate who is married or in a civil partnership as this means neither of the intended parents is a legal parent of the child and they will have no legal connection with the child at all. Legally the child would be a stranger.
If neither intended parent is the legal parent of the child, they must seek legal advice immediately to ensure that they are not breaking the law and committing offences by looking after the child. If there is no other provision, they are legally looking after someone else’s child, which counts as a private fostering arrangement. In such a case the intended parents are obliged to inform the local authority who will carry out frequent regular visits. Once the intended parents have made an application for a parental order, they no longer fall into the private fostering arrangement rules. This is another reason to make the application as early as possible.
In cases of international surrogacy immigration issues about bringing the child into the country where the intended parents live also arise.
The Difference between Paternity and Parental Responsibility
For the intended father to have parental responsibility if he is also the legal father of the child, he must acquire it, best through a parental responsibility agreement for fathers. If he is married to the intended mother, she could get parental responsibility through a parental responsibility agreement for step-parents.
How can legal paternity be transferred to the Intended Parents?
There are three main avenues open to intended parents:
- Parental orders
- Child Arrangements orders
Parental orders are a way of fast-track adoption specifically for surrogacy situations. Please find free information about parental orders on the parental orders page. They are the main, preferred and more straightforward way of obtaining legal paternity.
Adoption may be an option if the intended parents cannot apply for a parental order. The adoption process is lengthy and complicated and involves the adopting parents being closely scrutinised by the local authority social services department before the adoption. In cases of international surrogacy there are further pitfalls because there are provisions against adopting from abroad without following a particular procedure and without getting approval from the local authority in advance.
It is illegal to pay for adopting a child. Therefore if the adoption application arises from the surrogacy agreement and a payment has been made, this is likely to cause complications.
The only advantage with adoption would be that it may be easily recognised in other countries, whereas the parental order may not. This may be relevant if one of you is not British or you have property abroad, especially in countries where there are forced heirship laws. You should discuss your situation with a specialist solicitor.
Child Arrangements Orders
While a child arrangement order is in force which provides that a child lives with someone, it gives those people automatic parental responsibility. This means they can make day-to-day decisions for the child, such as agree to vaccinations, schooling and the like. It also avoids the provisions on private fostering (see above). Child arrangements orders can be a temporary provision while the court decides on an application for a parental order or adoption.
What about single intended parents?
Single people who have children through surrogacy cannot apply for a parental order.
Whether the legal parents of the child are the intended father and the surrogate or the surrogate and her spouse or civil partner, a single father or single mother could later apply for adoption of their child. However, if the parent is not already the legal father of the child, they run the risk of committing a criminal offence under s.92 and 93 of the Adoption and Children Act 2002, which was highlighted in the case of a gay man, who escaped this because his mother was his surrogate and so legally the child was his brother so that the provisions did not apply (B v C (Surrogacy – Adoption)  EWFC 17). If you are single and thinking of having a child through surrogacy, you must obtain detailed specialist legal advice.
It is expected that the situation for single parents will change in the course of 2018 so that they can then apply for parental orders too..
6 April 2018 by Andrea Woelke