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Surrogacy - parental order applications for children born through surrogacy outside of the UK
- AuthorCharlotte Coyle
This note sets out the key legal terms and definitions for prospective surrogate parents to be aware of and defines the legal process for parental order applications for children born through surrogacy outside of the UK.
The family law team at Goodman Derrick have years of experience advising parents who are considering surrogacy. Please contact any one of the team for an initial conversation about your surrogacy plans.
A parental order will only be made in respect of a child who has been carried by a surrogate and has a genetic link to one of the applicants.
The application must be made by two people who are over 18 and who are either married, civil partners or in an enduring family relationship. At the time of the application and the making of the order the child’s home must be with the applicants and either one or both of them must be domiciled in the United Kingdom.
An individual can be resident outside the UK while still remaining domiciled in the UK.
The application should be filed at Court between 6 weeks and 6 months from birth.
The court must be satisfied that both the surrogate and any other legal parent of the child, for example the surrogate’s husband, has given free and unconditional consent to the making of the order, with a full understanding of the legal implications. Such consent will be invalid if it is given by the surrogate less than six weeks after the birth of the child.
The court must be satisfied that no money or other benefit (other than expenses reasonably incurred) has been paid. Any payments made to the surrogate over and above her actual expenses may be retrospectively authorised by the court. In the absence of anything untoward or inappropriate in the financial dealings between the parties payments will normally be authorised.
In order to obtain the court’s authorisation it is therefore important to provide a detailed schedule of sums expended during the surrogacy. It is usually the case that making the parental order is considered to be in the best interests of the child.
The child will hold a passport of their country of birth and will enter the UK on a six month visitor’s visa. When travelling it is a useful precaution for the parents to have either a letter from the solicitor dealing with the parental order application and/or any relevant documentation in relation to the application and documents relating to the legal formalities in the country of birth.
Following the making of a parental order the court will notify the Registrar of Births who will then issue a UK birth certificate. Once the child has obtained a UK birth certificate an application can be made for a UK passport.
UK Surrogacy - what is the process?
Parents Application for a Parental Order
The court sends Notice of the Proceedings to the applicants and the respondents (the surrogate and her husband, if relevant).
The applicants file:
- Their own witness statements, which should include detail of their background, links to the UK, journey to parenthood, future welfare issues for the child (including child care, home and schooling), and expenses incurred as part of the surrogacy agreement;
- Witness statement of the surrogacy agency, in order to support the applicant’s position in relation to expenses paid;
- Witness statement of the surrogate’s physician, in order to establish the genetic link;
- Witness statement of the legal representative, in order to demonstrate that the surrogacy has taken place in accordance with the laws of the country in which the child is born;
- Acknowledgment of service of the surrogate and any other legal parent, in order to demonstrate that they have been notified of the proceedings; and
- Notarised agreement to the making of the Parental Order of the surrogate and any other legal parent, in order to demonstrate consent.
The court appoints a Parental Order Reporter, in order to obtain a CAFCASS case analysis to assist in determining the welfare and best interests of the child. This process is set in motion when the application is made and may take place before the Directions Hearing.
If possible, the reporter will visit the applicants at their home. Otherwise, the reporter will liaise with relevant agencies in the applicant’s country of residence.
Directions Hearing: if necessary the court will make directions and set a date for the final hearing. The applicants are not required to attend the Directions Hearing if they are represented.
Final hearing: the judge determines whether he/she is satisfied with the evidence and a parental order is made. If all relevant evidence (including the evidence of the Parental Order Reporter) is available the Directions Hearing can, subject to the court’s approval, be used as a Final Hearing.
The applicants and the child are required to attend the Final Hearing.
Goodman Derrick – Family
Our London based Family law team guide our clients through the legal process so as to minimise the financial costs and to achieve the best possible outcome, the group:
- provides legal advice and support for divorce and separation
- specialises in the resolution of financial issues arising through a relationship breakdown
- drafts and negotiates cohabitation agreements and pre and post-nuptial agreements
- focuses on child arrangements and UK and international surrogacy and parental order applications
Goodman Derrick LLP - A London law firm focused on delivering an exceptional service to ambitious businesses and entrepreneurs.
This guide is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.