Parental Orders (Surrogacy)
Surrogacy is when a woman (the ‘surrogate’) carries a child for another person or couple (referred to in this section as ‘intended parent/s’) where the intention prior to conception is that the child will be raised by the intended parent/s. The surrogate may use her own eggs and therefore be the genetic mother, which is known as ’traditional surrogacy’ or the pregnancy may be achieved via fertility clinic and donor eggs may be used, known as ‘gestational surrogacy’.
Domestic surrogacy arrangements are where all aspects of conception and birth take place within the UK. International surrogacy arrangements are where conception and/or birth take place overseas and additional information about international arrangements can be found at Surrogacy overseas - GOV.UK (www.gov.uk). Matters where there is an international element are usually heard in the High Court.
The Law Commission of England and Wales has recently published its joint report with the Scottish Law Commission, outlining recommendations for a robust new system to govern surrogacy, which they intend will work better for children, surrogates and intended parents. They published the final report alongside the draft Bill on 29 March 2023 Surrogacy - Law Commission.
Parental Orders
If you have a child through surrogacy, you as the intended parent/s will need to apply to the court for a Parental Order. This transfers legal parenthood from the surrogate (and her spouse or civil partner if she has one) to you.
This is an important process because without a parental order you and/or your partner may not be considered your child’s legal parent in the UK. This means that you may:
not have the authority to make decisions about your child’s education and medical care;
face legal complications should you and your partner separate or divorce; and
need to find and involve the surrogate in future decisions involving your child.
A Parental Order gives you full legal parenthood and parental responsibility in much the same way as adoption, but it is usually a much simpler process.
The Parental Order process
Overview
The court will ask us to provide a Parental Order Reporter to help it make a decision on the Parental Order application. Parental Order Reporters work for us and are qualified social workers who represent the interests of children involved in family courts.
The Parental Order Reporter’s role is to consider the child’s best interests and to look at your family’s circumstances in line with the Parental Order criteria.
The Parental Order Reporter will usually arrange to meet with you, see you with your child, and ensure that the surrogate freely consents to the application. This work typically takes between eight to twelve weeks.
Parental Order Reporters have a duty to contact or interview those people they think appropriate or as the court directs and to advise the court on the available options for your child. They may make checks with the local authority and the police, to see if there is any information held which might be relevant to the safety of your child. The welfare of the child(ren) throughout their life is the court’s paramount consideration in Parental Order applications.
The Parental Order Reporter will then provide a ‘Parental Order Report’ before the final hearing which will recommend whether a Parental Order should be made. Your Parental Order report will be sent to the court, and, with the permission of the court, the Reporter can also share the report with you in advance.
Overview
The court will ask us to provide a Parental Order Reporter to help it make a decision on the Parental Order application. Parental Order Reporters work for us and are qualified social workers who represent the interests of children involved in family courts.
The Parental Order Reporter’s role is to consider the child’s best interests and to look at your family’s circumstances in line with the Parental Order criteria.
The Parental Order Reporter will usually arrange to meet with you, see you with your child, and ensure that the surrogate freely consents to the application. This work typically takes between eight to twelve weeks.
Parental Order Reporters have a duty to contact or interview those people they think appropriate or as the court directs and to advise the court on the available options for your child. They may make checks with the local authority and the police, to see if there is any information held which might be relevant to the safety of your child. The welfare of the child(ren) throughout their life is the court’s paramount consideration in Parental Order applications.
The Parental Order Reporter will then provide a ‘Parental Order Report’ before the final hearing which will recommend whether a Parental Order should be made. Your Parental Order report will be sent to the court, and, with the permission of the court, the Reporter can also share the report with you in advance.
The Parental Order Reporter will need to obtain the surrogate’s consent (usually on Form A101A in England and Wales). The Parental Order Reporter will need to interview the surrogate to make sure that her agreement has been given unconditionally, that it was given after your child was six weeks old and that she fully understands the implications of giving consent. The Parental Order Reporter will usually interview the surrogate themselves but, if the distances involved are too great, they may request that the visit to the surrogate is carried out by a colleague based in an office closer to the surrogate.
If the surrogate is married or in a civil partnership it will be necessary for the Parental Order Reporter to interview her spouse/partner to ascertain if they too are giving their consent freely and require them to also sign a consent form. Consent from the surrogate’s partner/spouse is not required if they did not consent to the treatment or cannot be found.
If the child(ren) was born overseas, the Parental Order Reporter cannot obtain the surrogate’s consent in person. You as applicants will therefore have to provide evidence of consent to the order witnessed by anyone authorised by law in the relevant country to administer oaths for judicial or legal purposes, a British Consular official or notary public.
A Parental Order cannot be made if the surrogate actively withholds consent (although it can be made if she cannot be found); in such cases, other orders such as a Child Arrangements Order or Adoption Order would need to be considered.
Talking to your child about surrogacy
It is usually better to tell your children when they are still young. Many parents through surrogacy like to be open with their child from as early an age as possible.
This prevents any risk of them finding out by mistake, doubting their genetic connections as they grow older or sense that secrets are being kept within the family. The Donor Conception Network suggests the goal of early ‘telling’ is that a child should grow up ‘never knowing a time when they didn’t know’.
Ultimately, however, when to tell your child is up to you. Remember that telling your child is not a one-off conversation, you need to give information appropriate to your child’s age and understanding and children are likely to have more questions as they grow older.
Different children will respond differently to news of their origins. It is up to you to decide how much they should know at different stages growing up.
Many parents find that celebrating their unique family circumstances can make their child feel special and proud of who they are.
You should try to prepare for any questions your child may have, helping you to answer them confidently. This can prevent your child from feeling that surrogacy changes their relationship with you in any way.
There are a number of books aimed at helping parents to explain surrogacy to children. The following is a brief selection:
The Very Kind Koala: A surrogacy story for children by Kimberly Kluger-Bell (2013)
Why I’m so Special: a book about surrogacy by Carla Lewis-Long (2010)
The Kangaroo Pouch by Sarah Phillips Pellet (2015)
The pea that was me...and me...and me! (How all kinds of babies are made) by Kimberly Kluger-Bell (2018)
Sophia's broken crayons: a story of surrogacy from a young child's perspective by Crystal Falk (2014).
If you have used donated sperm or eggs, you will also need to think about how to talk to your child about this aspect of your surrogacy journey. The Donor Conception Network offers useful advice about how to talk to children about donated gametes.
Family storybooks can be a great way of telling your unique family story and making sure your child is secure with their origins and their identity. They can take many forms, such as a scrapbook or a memory box. You might want to consider a digital format, which could include a video diary.
You might want to include information about the treatment, images, or mementos from the surrogate and her family, or stories of your child’s development. Sharing this with your child as they grow older can help:
explain their origins;
give them a strong sense of identity; and
bring you closer together.
All children will react differently. However, there is no reason to think that your child will be upset by news of their origins, particularly if you are honest with them from an early age.
How you act when you tell them can have a big impact on their reaction. If you wait until your child is older, there is more chance that they will be confused or angry that you have not told them sooner. They are also more likely to understand that this means they may not have a genetic connection with one of you.
However, your child reacts, it is important that you try and understand how they might be feeling and answer any questions they have. Remember, what matters most to your child is having a loving and secure relationship, not their genetic connections.