Parental Order

Parental Order

Some couples are advised wrongly that Parental Orders are not required following Surrogacy abroad.  In a recent case, Mrs Justice Theis highlighted the need to apply for a Parental Order.

The case can be read here:

http://www.bailii.org/ew/cases/EWHC/Fam/2013/1432.html

If you do not secure a Parental Order, the child has no legal relationship with you.  This can have long-term disadvantages in terms of consenting to medical treatment for the child, tax planning, inheritance and as a beneficiary to any private medical policy that you have.  Unless you secure a Parental Order, you will need to apply to adopt the child and foster in the meantime.  Parents who do none of these things are taking a risk that impacts their ability to parent the child throughout the child’s life.

A good surrogacy lawyer in the UK  will advise you on your chances of securing a Parental Order in England. The Human Fertilisation and Embryology Act 2008 (HFEA) regulates surrogacy in the UK.

Surrogacy is legal in England but commercial surrogacy is not. As British citizens, there is nothing preventing you from entering into a surrogacy arrangement in another country providing that it is legal in that country.  You need to get expert advice from a surrogacy lawyer in England and a family lawyer in the country where the surrogacy will take place.  It may be that your surrogacy lawyer in England has worked with couples who have been to that country before and therefore may be able to provide some information.

The legal relationship to any child born abroad following a surrogacy arrangement is determined by legislation in England.  If the legislation in another country makes you legal parents of the child that is only valid in that country.  As soon as you return to England, you should apply for a Parental Order to become the legal parents according to the Law in England.

According to the law in England, you will need to apply for a Parental Order to become the legal parents for your child.  The provisions in the HFEA set out the legal criteria for a Parental Order.  Please note that a birth certificate issued in another country may have you recorded as the child’s legal parents but a foreign birth certificate is not recognised under English Law.

Do you need a Parental Order?  In order for you both to become legal parents, yes you do.

For advice on surrogacy and Parental Orders, please contact Harjit Sarang at harjit@bestsolicitorsllp.co.uk 01727 884688 / 07980 917882

About the Author

Family law solicitor.