Insight
Surrogacy is the conception of a child by either an individual or a couple with the use of a ‘surrogate’. Put simply, a ‘surrogate’ is someone who agrees to have a baby for you or you and your partner. In such a situation, you would be known as an ‘intended parent’ or the ‘intended parents’ if undertaking the process as part of a couple.
Why do I need a solicitor to be involved?
There are several stages where you will likely need the involvement of a solicitor in this process.
If using a licensed clinic, they will require both the intended parent/s and the surrogate to have taken independent legal advice. This involves a meeting between you as the intended parent/s and a solicitor to discuss several matters. These include advice about the process, the provisions of the Surrogacy Arrangements Act 1985, and what may happen if (during pregnancy or after the birth of the child) either party to the arrangement decides that they no longer want to proceed. Equally, the surrogate will be required to receive independent legal advice from a separate solicitor to that of the intended parent/s regarding the same topics. The clinic will likely require written confirmation from the solicitor that appropriate legal advice has been provided before proceeding with the treatment.
Who are the legal parents of a baby born through surrogacy?
The legal parents of a baby born through a surrogacy arrangement are the surrogate mother and her spouse or civil partner unless his or her consent to the artificial insemination or placing in the mother of the embryo or eggs was not given. If the surrogate mother is not married or in a civil partnership, or her spouse or civil partner has not consented to the surrogacy, then the genetic father will ordinarily be the legal father. In other cases, a non-genetic father or second legal parent may become a legal parent, provided only that the stringent agreed fatherhood or agreed female parenthood conditions are complied with.
What steps are therefore required to become legal parents of the baby born through surrogacy?
As the intended parent/s you are required to ask the court to grant an order conferring on you a legal status of parent by applying for a Parental Order. To do so, the following steps must be taken:
- The intended parent/s must lodge an application for a Parental Order at court within six months of the date of the child’s birth. (However, it is established now in case law that the court can make a Parental Order if an application is made outwith this time frame, albeit this is not best practice.)
- The application will done by way of a Petition in court by submitting a document known as a Form 22.
- At the same time as lodging the application, the following productions must be lodged with the court:
1. birth certificate of the child,
2. petitioners’ birth certificate(s),
3. petitioners’ marriage certificate if applicable, and
4. any other document founded on by the petitioners in support of the terms of the petition.
What happens next?
Once the Petition is lodged, the court will appoint a Reporting Officer and Curator ad Litem (usually the same person), who will confirm in their report whether the required conditions as per the Human Fertilisation and Embryology Act 2008 are satisfied and witness any consents required and safeguard the best interests of the child. Once the reports are made available to the court, a Hearing will then be fixed and both those making the application, as well as the surrogate and their spouse or civil partner, will be invited to attend.
At that hearing, if all relevant consents have been obtained, and the reports from the Reporting Officer and Curator ad Litem support the Parental Order being granted, then the solicitor acting on your behalf may seek to have the Parental Orders granted at the first hearing. If granted, a copy of the Parental Order will be sent to the Register General which will trigger an entry being made in the Parental Order Register, which will then allow a ‘new’ birth certificate setting out that you as the intended parent/s are the baby’s parents.
Get in touch
Our specialist family solicitors are experienced in assisting intended parent/s and surrogates in such situations. We would be happy to discuss all of your options with you, and assist you throughout the legal process to reach your end goal, whatever option you decide is best for you and your family.