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:

Who is the legal mother of the child?
Who is the legal father of the child?
What is the difference between paternity and parental responsibility?
How can legal paternity be transferred to the intended parents?
What about single intended parents?
Why is legal paternity important at all in surrogacy cases?

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.

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, however, the intended father is only the legal father 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, when her 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 the 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.

In cases of international surrogacy immigration issues about bringing the child into the country where the intended parents live also arise.

Parental Responsibility

Being a legal parent is not the same as having parental responsibility for a child. A legal mother always has parental responsibility for a child, so in surrogacy cases, this will be the surrogate.

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.

People who are not legal parents of a child can also have parental responsibility, including for example step-parents or persons in whose favour there is a residence order.

Options to create legal connections

There are three main avenues open to intended parents:

Parental orders
Adoption
Residence orders

Parental 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.

Adoption

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.

If a child has been brought up by one legal parent and his or her partner and they apply for a step-parent adoption, the (earlier) payment could be argued to have been incidental. There is no guarantee, however, that the court will follow this. Therefore there will be a delay before the application for the adoption can be made. If anything happens to one parent who is not a legal parent during this time, this could have severe consequences for the child in terms of inheritance, pension benefits and so on. Until there is a parental order or an adoption, the child will remain in a legal limbo.

The only advantage with adoption would be that it may count in third countries, whereas the parental order may not. This may be relevant if you have property abroad, especially in countries where there are forced heirship laws. However, it remains difficult to see how the courts administering the estate of one or both of the intended parents in a third country could go beyond the child’s birth certificate that is issued after the parental order has been made. Unless you have family in such a country with forced heirship or differential inheritance tax, or you intend to move and settle there, there should be other ways around this such as owning the foreign property through a trust or a company.

Adoption and step-parent adoption are probably options in practice confined to cases where the intended parents missed the time limit for an application for a parental order and brought up the child for many years.

Residence Order

A residence order is simply an order that a child should live with certain people. While it is in force 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). Residence orders can be a temporary provision while the court decides on an application for a parental order or adoption. In some cases is may, however, be the best possible only long-term solution.

What about single intended parents?

Please note that single people who have children through surrogacy cannot apply for a parental order.

If the intended parent is a single man who is already legally the father of the child (see above), he will under English law not be able to become the only parent of the child and will share parentage with the surrogate.

If the intended parent is a single man who is not already legally the father of the child because the surrogate was married or in a civil partnership, for example, he may possibly later be able to apply for single-parent adoption, which would then extinguish the parentage of the surrogate.

If the intended parent is a single woman, she will under English law not legally be the mother of the child and so may also possibly be able to apply for adoption, which would make her the only parent of the child.

Please contact us to discuss the options in your case.

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. There is no scope of remedying this once the child has reached 18 under English law and the child would then remain in a legal limbo for ever.

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.

All the options should be discussed with a specialist solicitor. For advice on your specific circumstances contact Alternative Family Law: ring or email us.

February 2010

Alternative Family Law

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