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    A focus on surrogate consent and parental orders

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    Stowe family lawyer Tamara Adams explores potential complications in surrogacy cases and asks do surrogates need to give consent for a parental order to be made in the UK, and how should that consent be given?
    What is a Parental Order?
    A Parental Order is an order obtained by the court post birth which makes the intended parents of the child the legal parents and permanently extinguishes the legal status and responsibilities of the surrogate and, if applicable, their spouse.
    After a Parental Order has been made, a UK Birth Certificate will be issued recording the intended parents as the legal parents. This replaces the original birth certificate.
    To obtain a parental order, the intended parents must satisfy the family court that they meet all the criteria set out in Section 54 (for couples) and Section 54A (for single parents) of the Human Fertilisation and Embryology Act 2008. These are:

    There must be a genetic link to the child with at least one of the intended parents
    The application can be made by an individual, or a couple who are married, in a civil partnership or enduring relationship
    An application must be made within 6 months of birth
    The surrogate and their spouse must freely consent to the order being made. This consent cannot be given within 6 weeks of the child’s birth
    The Applicant(s) must be domiciled in the UK
    The child must be living with the applicant(s) at the time of the application; and
    The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred or authorised by the court) has been given or received by either of the applicants for, or in consideration of, the surrogacy arrangement

    A question of surrogate consent
    Many of the Parental Order requirements have needed judicial clarification. Most recently in Re C (Surrogacy: Consent) [2023] EWCA Civ 16 whereby the Court of Appeal provided essential guidance on the requirement for consent from the surrogate.
    Within this case, the surrogate provided consent to a Parental Order being made on the basis the Court also made a Child Arrangement Order to allow for the surrogate to spend time with the child.
    In August 2021, a Parental Order was made alongside a child arrangement order for regular contact between the surrogate and the child. The surrogate then sought to appeal on the basis she had not provided free and unconditional consent. As a result, she sought for the Parental Order to be set aside.
    The intended parents argued that the necessary consent was given, but if that is not so, they contended that irrespective, the parental order should be left in place and section 54(6) of the Human Fertilisation and Embryology Act 2008 can be read in a way as to confer a dispensing power upon the court.
    The case background

    A surrogacy agreement was signed prior to insemination
    The surrogate was pregnant and then, the relationship between the parties deteriorated
    The child was born, and the surrogate received postnatal counselling
    The intended parents then applied for a parental order but the surrogate returned the form of acknowledgement stating she did not consent to the making of the order and opposed the application
    The surrogate then provided consent orally in court on the basis that a child arrangements order was made providing for her to have monthly contact and a prohibited steps order to prevent the intended parents from moving without her written agreement
    The court in the first instance then proceeded to make a parental order and a child arrangement order. The next day, the surrogate then made contact with the intended parent’s legal team to express she felt under pressure to consent to the order
    The contact order begun, and contact took place over time. However, one scheduled contact did not take place. The intended parents then applied to discharge the terms of the contact order and they did not permit contact thereafter
    The surrogate then sought permission to appeal the parental order
    The appeal was on the basis of two grounds:

    The court was wrong to make a parental order when it was clear the surrogate’s consent was being given conditional on the making of a child arrangement order and therefore not “unconditionally”; and
    The Court was wrong to make a parental order when the consent provided by the surrogate was not provided “freely”.

    Court of Appeal decision
    The Court of Appeal considered the wording of Section 54(6) of the Human Fertilisation and Embryology Act 2008 and expressed the right of the surrogate not to provide consent is a pillar of the legislation.
    The Court confirmed that if there is any doubt about consent, it will be a matter for the Court to judge, considering all circumstances.
    The court confirmed that consent should be in writing. Even then, consent can be withdrawn at any stage before the order is made. This formality is not mandatory but, in its absence, should put the court on its guard to ensure the proffered consent is valid.
    In this case, the consent was given orally in a face-to-face court hearing and as such, any stated consent was devalued due to the possibility the court process might in itself be exerting pressure on the surrogate.
    The court therefore determined that the European Convention on Human Rights do not require a Parental Order which was made without valid consent from the surrogate.
    The court determined that the rights of the intended parents and child are not violated by the setting aside of the order for lack of consent on the part of the surrogate. As a result, the Court of Appeal dismissed the Respondents application for a Parental Order. The appeal was therefore allowed. The Court confirmed the child should be brought up by the intended parents and have contact with the surrogate as was intended by all.
    It therefore remained agreed for this to take place but the Court of Appeal did not have the power to make such an order as was beyond the scope of the appeal.
    All in all, this case is pivotal in reiterating the importance of obtaining the surrogates free and unconditional consent to a parental order and reiterated the importance of this consent to be provided in writing.
    Useful links:
    UK surrogacy law FAQs
    International surrogacy – what you need to know
    Stowe talks: Surrogacy in the UK with My Surrogacy Journey
    Guide: Surrogacy and Parental Orders
    Why we need surrogacy law reform More

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      in Children

      UK surrogacy law FAQs

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      Stowe Senior Associate Liza Gatrell, experienced Surrogacy Lawyer, has compiled a list of surrogacy FAQs for those looking into seeking the help of a surrogate as a way of creating their family. 
      Though surrogacy can be legally complex and emotionally charged, it is an increasingly popular, and for many people necessary, route to parenthood. Year on year the number of parental orders made in this country is increasing, although the number of surrogacy arrangements may be far higher than any of us can predict. Whilst change is afoot surrogacy law in the UK remains unduly complex. Here’s a list of questions that I get asked often, to help add clarity to Surrogacy Law.
      What is surrogacy?
      Put simply, surrogacy is where a woman carries and gives birth to a child for another person, or couple. There are two difference types of surrogacy arrangement:
      Traditional surrogacy – the surrogate is artificially inseminated with the intended father or donor’s sperm. The surrogate not only carries the child, but she also donates her egg and as such she is biologically related to the child.
      Gestational surrogacy – the surrogate is implanted with an embryo via IVF and therefore she is not biologically related to the child. Often the sperm and egg of the intended parents will be used, which means that the child will be biologically theirs. Donor egg or sperm can be used if this is not possible. It is possible to use donor egg and sperm, but this will impact on your ability to apply for a parental order.
      Is surrogacy legal in the UK?
      Yes, it has always been legal to enter into a surrogacy arrangement in the UK. However, there are various rules and regulations which need to be carefully considered. Surrogacy contracts are unenforceable, which means that there must be a great deal of trust between all parties to the arrangement. It is also against the law for a third party (such as a solicitor) to take payment for negotiating a surrogacy contact.
      How do I find a surrogate?
      There are several non-profit organisations in the UK who can help.  The most well-known are Surrogacy UK, Brilliant Beginnings and COTS. It is also not uncommon for family members or friends to offer their help.
      What is a surrogacy agreement and are they binding?
      A surrogacy agreement formally records how intended parents and surrogates want their arrangement to work, providing clarity and a mutual understanding of their respective commitments. However, surrogacy agreements are not enforceable in the UK and the intended parent(s) will need to apply to the court to become the legal parents of the child.
      Is it legal to pay our surrogate?
      Contrary to popular belief, it is not illegal to pay a surrogate mother for her services in the UK. However, during the parental order application, the court will need to authorise any payments made over and above the expenses she has reasonably incurred. There is no definition of reasonable expenses, which means the court must decide what is reasonable in each case. The court often takes quite a relaxed approach and there is a history of the High Court approving payments in international cases that more than covers expenses.
      Can the intended parents be named on the child’s birth certificate?
      The birth certificate must reflect the legal position at birth. This means that the surrogate will always be named on the birth certificate in the UK. Whether one of the intended parents can be named will depend on whether the surrogate is married/ in a civil partnership and the circumstances surrounding insemination.
      What is a parental order?
      A parental order makes the intended parent(s) of the child the legal parents and it permanently removes the legal parenthood of the surrogate and her spouse. Once the order has been made the birth will be re-registered and the original birth certificate will be sealed and only accessible to the child once they are over 18.
      The court process can take between 4-12 months and will usually involve 1 or 2 court hearings.
      Can the surrogate change her mind and try to keep the baby?
      The surrogate remains the legal parent up until a parental order is made. The surrogates consent is also required before a parental order can be made. Many intended parents worry about what would happen if the surrogate wanted to keep the baby, but cases of this happening are incredibly low. The surrogate can also be concerned that she may be left holding the baby if the intended parents change their mind, or their circumstances change.
      What are the most common overseas surrogacy destinations?
      The most popular destinations for surrogacy arrangements abroad are US, Canada, Georgia, Greece and historically include Ukraine. It is important to do extensive research before embarking upon a surrogacy arrangement abroad. Your marital status and gender may dictate the options available to you.
      It is important that you ensure that you comply with the law in the UK and your destination country.
      If I am named on the foreign birth certificate/ post birth order will I be recognised as the legal parent in the UK?
      No. In the UK the surrogate will always be the legal mother. Whether one of the intended parents can be recognised as the legal parent at birth will depend on the surrogate’s marital status and the circumstances surrounding the insemination.
      Will my child be a British Citizen?
      This depends. If it can be proven that the surrogate is single, and the biological and legal father is British, then he passes British Citizenship automatically to the child. This means that you can go ahead and apply for your child’s British passport.
      If not, then an application for British Citizenship will need to be made first. There is a substantial fee for this and the process is lengthy.
      How will I bring my child home?
      The child will not necessarily be British at birth, even if one or both of the intended parents is British. Where the child is British an application will need to be made for a British Passport. These applications can be lengthy and often attract scrutiny. If a passport is issued, then the child can travel back to the UK using their British passport.
      If the child is not British at birth, you may need to make an application to register the child as British. This too can be a lengthy process. Once the child has been successfully registered, they will be issued with a Certificate of Registration, which can then be used to apply for a British passport.
      In some countries, such as the USA and Canada, your child will be recognised as a citizen in the destination country. This means that they can travel back to the UK on a local passport. You will just need to ensure that you apply for a British passport before the visa expires.
      If my child is born abroad, do I need to be in the UK before I make the application for a parental order?
      No, you don’t. The application for a parental order needs to be submitted within 6 months and this can be done whilst you are still abroad.
      Get in touch
      For more information about Surrogacy please do get in touch with our Client Care Team using the details below or make an online enquiry More

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      in Children

      Routes to single parenthood explained

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      Single parenthood
      For so many people, becoming a parent is not easy, whether it’s because they’re in a same-sex relationship, have had alternative priorities until now, or have experienced fertility challenges. But what if you are single, and either haven’t found a partner yet, or you have made the decision to become a solo parent? Happily there are alternative routes to parenting. In fact, it is becoming increasingly common for people who haven’t had children yet, and are single in their 30s and 40’s, to seek alternative routes to parenthood.
      So, what are your options if you want to become a parent while single? Liza Gatrell, Senior Solicitor at Stowe Family Law explains more.
      Adoption
      One route to parenthood for single parents is adoption. You can apply for adoption as a single man or woman. The eligibility criteria for adoption in the UK is quite broad. You can apply to adopt in the UK if:

      You are over 21 (there is no upper age limit)
      You have not have been convicted of any “specified offences”, which are offences against children and sexual offences
      You must have a fixed and permanent home in the UK and have lived in the UK for at least 1 year before you begin the application process.

      Your suitability also needs to be approved by an adoption agency. This means that a range of factors will be considered when establishing your eligibility for adoption, such as your age and health – agencies will expect you to have the health and vitality to see children through to independence, support network, religion, financial circumstances and ethnic background.
      Surrogacy
      Since the 3rd January 2019 a change in the law has meant that parental orders can be applied for by single parents. A parental order gives legal parenthood to the intended parents of a surrogate child and extinguishes the parental status of the surrogate. For a single intended parent to be able to apply for a parental order it is a requirement that they are the child’s biological parent, which inevitably will exclude some people.
      For single intended dads, if your surrogate is married then under current law her spouse or civil partner will automatically be recognised as the child’s second legal parent and you cannot be named on the initial birth certificate. If your surrogate is not married, then you can be the second legal parent and immediately be named on the birth certificate. Either way you will still need to make a parental order application to extinguish the surrogate’s parental status.
      For single intended mums, the surrogate will always be the child’s legal parent at birth, even if you are the biological mother and named on a foreign birth certificate. The biological father will also be the legal father if no Human Fetilisation & Embryology Authority (HFEA) clinic forms are signed.  If a HFEA clinic is used, and the surrogate is not married/ does not have a civil partner, then the intended mother can be nominated as the other parent by using specific forms.
      Donor Conception
      Whilst this isn’t an option for everyone, many single women turn to sperm donors each year to make parenthood a reality.
      In the UK sperm (and egg) donation services are provided by HFEA regulated fertility clinics, but there are also donor-matching websites, and some people do make their own arrangements.
      If you use a HFEA clinic then donors will be screened, donors can only be paid for their expenses, each donor can donate to no more than 10 families, donors and parents must be offered counselling and the donor can withdraw their consent up to the point they are transferred into someone else’s body.
      An important difference between using a HFEA clinic and a private arrangement, is the legal status of the donor. If a HFEA clinic is used, then the donor has no legal rights towards the child. Information is kept on record and anyone over the age of 16 can ask the HFEA whether they were conceived with donor eggs or sperm at a clinic in the UK after 1991 and request any non-identifying information held. Some donor-conceived people can also ask for identifying information about their donor once they are 18. This will apply to all conceptions from the 1st April 2006.
      If you choose to use a known donor then it is advisable to have a pre-conception agreement drawn up. This allows you to have very open and honest discussions and set expectations before conception takes place. Most disputes are born from mismatched expectations. Whilst such an agreement is not legally enforceable, they set out clearly what the intentions were and can carry weight in court.
      If you use a known sperm donor, and don’t go through a HFEA clinic, then the law will dictate who the legal parents will be. The birth mother is always the legal mother and must be registered on the birth certificate, the other legal parent is either their spouse/ civil partner or possibly the biological father. As a single mother using known donor sperm, you will need to decide whether to register the second legal parent on the birth certificate, which means that they would then share parental responsibility automatically.
      Co-parenting partnerships
      If the idea of being a single parent is not for you, then a co-parenting partnership could be the answer. Instead of becoming single parents by choice, this growing trend means that singles meet online with the sole objective of raising a child together platonically.
      There are a variety of websites, such as Modamily and Co-Parent Match, which assist those who are ready to become a parent but either don’t want to use sperm banks or are looking for someone to co-parent with.
      You may know a choose to enter into such an arrangement with a friend. If you are considering going down this route then I recommend that you do your homework, especially if your co-parent is someone you have not known for a long time. As many separated parents will tell you, co-parenting across two households takes a lot of communication and shared values so ensure that you are both on the same page.
      Get in touch
      For more information on alternative routes to parenting, please do get in touch with our Client Care Team using the details below or make an online enquiry More