International Surrogacy has been in the news recently following a Petition lodged by Adam Frisby and his partner, Jamie Corbett, seeking a change to surrogacy law in the UK that would see intended parents recognised as the child’s legal parents from birth. The Government has responded to the Petition confirming that they do not intend to review the legislation applying to surrogacy and the pathway to legal parenthood in the UK at this time.
Surrogacy is a key pathway to parenthood for many people in the UK, including, in particular, LGBTQ+ couples and it is therefore timely to consider this subject as we celebrate pride month, particularly when an international surrogacy is involved.
What is surrogacy?
Surrogacy is an arrangement where a woman, the “surrogate”, carries and gives birth to a child on behalf of another person or couple, who are known as the “intended parents”.
Surrogacy arrangements can take place in the UK or overseas. In the UK, a particular Court process has to be followed to confer legal parenthood on the intended parents of a child born through surrogacy, regardless of whether that surrogacy arrangement takes place in the UK or overseas.
Why is a UK Court process needed after international surrogacy?
There can be confusion as to why this UK Court process is required, particularly if the law of the country in which baby was born recognises the intended parents as the legal parents of the child, or where there is a biological connection between one or both of the intended parents. However, under UK law, the surrogate will be considered the legal mother of the child and, if she is married, her spouse the other legal parent. If the surrogate is unmarried and the child has a biological connection to the intended father, he will be considered the father for the purposes of UK law.
What is a Parental Order?
A Parental Order granted by a UK Court is required to confer legal parenthood on the intended parents. There are a number of criteria that must be met before a Parental Order can be obtained, including:
- Where there are two intended parents, they must be married, civil partners or living as partners in an enduring family relationship.
- at least one of the intended parents must be biologically related to the child.
- at least one of the intended parents must be domiciled in the British Isles.
- The child must be living with the intended parents at the point at which the application is made and that must be in the UK.
- The Petition seeking the Parental Order must be lodged with the Court before the child turns 6 months old.
What happens after a Parental Order Petition is lodged?
Once a Petition has been lodged, the Court will appoint an independent lawyer to act as a Curator ad Litem and Reporting Officer. The Curator ad Litem/Reporting Officer’s job to produce a report to the Court which addresses several points, including whether it is in the child’s best interests for the intended parents to be made the legal parents of the child via the granting of a Parental Order. The Court must also be satisfied that no money or benefit, other than for reasonably incurred expenses, has been given or received in connection with the surrogacy arrangement. If money has been exchanged, the Court has to authorise this.
Does the surrogate need to give consent?
Yes. The surrogate must provide her consent in a particular form and that consent must be provided no earlier than six weeks after the baby is born.
Additional complexities can arise where the baby is born abroad, as there are certain requirements that must be fulfilled in respect of the consent form and documents may need to be translated.
Will there be a Court hearing?
Once the Curator ad Litem and Reporting Officer has prepared their report and submitted this to the Court, the Court will fix a hearing. Notice of this hearing and the Court paperwork requires to be formally served on the surrogate and if she is overseas, this can be more complex.
What immigration issues should intended parents consider?
Bringing a child from abroad to the UK after a surrogacy arrangement will not necessarily be straightforward and it is therefore essential that intended parents take immigration advice at the earliest possible opportunity to ensure that there are no complications arising once baby has been born, and the intended parents are ready to travel back with the child to Scotland. Our Family Law Team works closely with our Immigration colleagues throughout all our international surrogacy cases to ensure that clients are fully supported throughout the process.
When should intended parents take legal advice?
There are a variety of reasons why a couple or individual may choose to pursue a surrogacy arrangement internationally. It is essential that anyone embarking on this journey does their research and takes legal advice at an early stage.
At Thorntons, we have a wealth of experience in assisting clients in obtaining Parental Orders following both domestic and international surrogacy arrangements. We provide guidance and expertise during what is a very exciting, but also stressful, time for families.
If you would like more information about surrogacy and parental orders, please reach out to a member of the family law team.
