Surrogacy and Parental Orders: What you need to know

Surrogacy and Parental Orders: What you need to know

Surrogacy is becoming an increasingly common way for people to build a family. While the journey can be an exciting one, the legal process surrounding surrogacy and Parental Orders in England and Wales can be complex. Whether you are considering becoming a surrogate or growing your family through surrogacy, understanding the legal framework from the outset can help you avoid unnecessary complications.

Over the last 10 years there has been a steady rise in the number of people choosing surrogacy to grow their family. In 2024 alone there were around 500 applications for Parental Orders in England and Wales, the legal process that recognises the intended parent or parents as the child's legal parents.

The law surrounding surrogacy and Parental Orders continues to evolve, although it has not always kept pace with the many different ways families are formed today. As a result, seeking specialist legal advice at an early stage is one of the best ways to ensure you understand your rights and responsibilities before entering into a surrogacy arrangement.

What are the types of surrogate?

There are two different types of surrogate; a gestational surrogate and a traditional surrogate.

A gestational surrogate is where the embryo is created using IVF with the eggs and sperm of the intended parents. The embryo is then implanted into the womb of the surrogate. Gestational surrogates therefore have no biological link to the child that they are carrying.

A traditional surrogate is where the sperm of the intended Father or donor is used to fertilise the egg of the surrogate. This means that there is a genetic or biological link between the surrogate and the child.

Who is the ‘legal parent’?

The surrogate will be the ‘legal parent’ of the child regardless of the method of surrogacy used. Accordingly, it is the surrogate who will hold Parental Responsibility for the child upon his/her birth.

An added complexity is that the surrogate’s partner will also be considered the child’s ‘legal parent’ if they are married to or in a civil partnership with the surrogate.

What is a Parental Order?

Legal Parentage and Parental Responsibility are different legal concepts. Legal Parentage relates to financial rights and responsibilities over a child, whereas Parental Responsibility is a parent’s general day-to-day duties and responsibilities.

A Parental Order ends the ‘legal parent’ status of the surrogate and their partner. The recipients of the Parental Order become the legal parents. This is the point at which – in the eyes of the law – the recipients become the parents of the child. This confers rights above and beyond Parental Responsibility and, importantly for the child, recognises his/her life story and family identity.

How do you apply for a Parental Order?

The requirements for making a Parental Order are neatly set out in Section 54 of HFEA 2008. They include;

• An application must be made within six months of birth;
• There is no longer a requirement for there to be two applicants (following a change in the law in 2019, single Applicants can now apply);
• At the time of the application, the child’s home must be with the Applicant/s;
• Either or both of the Applicant/s must be domiciled in the United Kingdom, Channel Islands or Isle of Man;
• The Applicant/s must be over 18 years of age; and
• No money can be given for the surrogacy arrangement, with the exception of ‘reasonble incurred’ expenses.

In the United Kingdom it is illegal to enter into a surrogacy arrangement for commercial and/or financial gain. This is a point of difference with other jurisdictions, such as the United States of America.

As with (almost) everything in the law, there are exceptions and surrogacy is one area of the law where the Court will work creatively to try and achieve an outcome that prioritises the welfare of the child.

The Court has continually expressed, through previously decided cases, the importance of Parental Orders in providing the child with an identity and recognising their family make-up. The welfare of the child will always be prioritised, and a Parental Order will recognise the child’s parents and family for life.

How can we help?

The law of surrogacy and Parental Orders is relatively new and is continuously evolving.

If you are thinking of entering into a surrogacy arrangement, either as a surrogate or as the potential parent, it is important that you seek independent legal advice early in the process to ensure that you understand your rights and next steps.

Unfortunately, there are many pitfalls and possible consequences if the correct procedure isn’t followed.

Sadly there are also many examples of cases where the relationship between the surrogate and the prospective parents (or even the relationship of the prospective parents themselves) has broken down during the process. This makes matters more complex and navigating these issues is emotionally as well as legally complicated. It is therefore essential that you obtain specialist legal advice from an experienced solicitor or barrister.

We always recommend that you seek appropriate advice at the earliest possible stage, and before you enter into any arrangement. This will ensure that appropriate safeguards are put in place and that procedural difficulties are avoided.

At Hay & Kilner we are here to support you and our team of experienced and specialist family lawyers, led by a specialist family barrister, Kate Fenwick, are on hand to answer your questions and guide you through what should be an exciting process.

You focus on growing your family and let us take care of the rest. Get in touch to find out how we can help.