"Away in a Manger": Parenthood through Surrogacy. The family law 12 days of Christmas - day 5

As we turn our calendars to December, and we can finally start getting into the Christmas spirit, our family law solicitors share several of their favourite family law topics with a festive twist.

Over the first 12 working days of December, they'll be giving their family law version of the 12 songs of Christmas, where they'll cover a wide range of questions or issues that often arise when dealing with family law matters…

“Away in a Manger": Parenthood through Surrogacy

At this time of year, thoughts tend to turn to family and, in some cases, to starting one. Some of us have a more complex journey to parenthood than others, and over the last decade or so, the number of people becoming parents via surrogacy arrangements has more than tripled, and continues to grow. So how does the legal side of surrogacy work, and what do you have to do to secure legal parenthood? Under UK law, the surrogate is the legal mother of the child at birth. To transfer legal parenthood from the surrogate (and usually her spouse or civil partner, if she has one), the intended parents must obtain a court order known as a “parental order”. Their application to the court must be made after the child's birth but before the child is six months old. The key requirements for being granted a parental order are:

  1. The intended parent(s) must be over 18.
  2. The surrogate (and her spouse or civil partner, if relevant) must consent.
  3. At least one of the intended parents must be the biological parent of the child, and if there are two intended parents they must be married, in a civil partnership or in an enduring relationship.
  4. The child must have their home with the intended parent(s).
  5. At least one of the intended parents must be domiciled in the UK.
  6. The surrogate must not have been paid to act as surrogate, save for “reasonable expenses”.

Some of these requirements can be complex, and it is sensible for the intended parents and the surrogate to each take independent legal advice at a very early stage. If the surrogacy arrangement is taking place outside the UK, there may also be immigration issues to consider, and specialist legal advice on that as far in advance of the birth as possible is also prudent.

If you or anyone you know would benefit from advice on this, please contact Tom Burgess or Joanne Thomas.

The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.

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