Surrogacy is an increasingly common route to parenthood for both LGBT and heterosexual couples. The number of parents finishing their surrogacy journey with an application for a parental order in England has risen every year since 2009-10, with 295 applications made in the past year. But does this figure tell the whole story when it comes to the total number of parents having children through surrogacy?
When a child is born following a surrogacy arrangement, British law considers the surrogate – as well as her partner if she is married or in a civil partnership – to be the child’s legal parent. A parental order is the mechanism by which intended parents are given legal status as parents and they take parental responsibility for their child.
Why apply for a parental order?
Without one, parental responsibility for the child stays with the surrogate, and at least one, if not both intended parents will not have it.
- This could cause difficulty when intended parents need to make important decisions about their child’s life, such as their education or health care.
- Not having a parental order could also cause serious complications later in life; for instance, if a couple splits up or a partner dies and it becomes apparent that one of them, or even both of them, do not hold parental responsibility for their child.
- A parental order can also make it easier for parents to talk to children about their origins as they grow older – reassuring them about their identity and avoiding any confusion that legal uncertainty about parenthood may bring.
Concerns have been raised that some parents having a child through surrogacy do not go on to apply for a parental order. In May last year, Justice Theis, a High Court judge, created headlines when she suggested that the number of parents failing to obtain a parental order could potentially be a ‘ticking legal timebomb’. While there is great difficulty establishing the number of parents who don’t apply for a parental order, a number of cases that have come to court highlight some of the concerns raised.
In one recent case, parents who had made surrogacy arrangements in the US didn’t realise that a parental order was needed to obtain legal parenthood in the UK. The couple assumed that because their names were on the child’s birth certificate, they would be the legal parents in the UK – which was not the case. It was not until reading a story in the newspaper some time later that the couple realised – much to their concern – that a parental order was needed to fix their legal status as parents; however, by this point they had missed the six month deadline for an application to be made.
Fortunately in this case the couple decided to apply anyway. The judge extended the deadline and granted the order, as it was clear that this was in the best interests of the child. However, the case highlights some of the possible reasons that parents fail to apply for a parental order. Lack of awareness is a big one – many parents believe that they are already the legal parents, particularly when they have a foreign birth certificate. Others believe that they do not meet the criteria for applying – perhaps they have missed the six month deadline. Sometimes parents think that the process will be overly intrusive.
Given the potentially serious implications for the children involved, the social work organisation providing the voice of the child in family court proceedings, Cafcass (Children and Family Court Advisory and Support Service), has been campaigning to change these beliefs and to ensure that intended parents understand why a parental order is so important for their child in the long run. Cafcass plays a role in all parental order applications and their Parental Order Reporters advise the court about the best interests of the child. Their message is simple: if you are going through surrogacy – in the UK or abroad – applying for a parental order is the most straightforward way of ensuring that you both have legal rights for your child.
Ben and Lee had a daughter through surrogacy in Middlesbrough, England. For them, getting a parental order was about completing their family and avoiding any complications. “It was important that Lee’s name was included on the birth certificate so that our family would be complete,” says Ben. “We would also need the parental order in place to do the practicalities, such as applying for Eleanor’s passport and registering her at the dentist’s. These are the things you just don’t think of until they come along!”
Ben also says that while they were initially apprehensive about the process, the Parental Order Reporter was able to provide support and reassurance: “We were unfamiliar with the court setting but Maureen knew the judge and was familiar with the setting, which put us at ease.”
So strong is their belief in the importance of the parental order that Ben has played a key role in Cafcass’ campaign, helping to create short online videos to encourage other intended parents to apply. These are available on Cafcass’ website, along with practical details about how to apply, to try and make the process as straightforward as possible.
As well as emphasising why a parental order is so important, Ben also offers practical tips for other parents going through the process. Ensuring you have clear records of your surrogacy arrangement, such as bank statements and records from the surrogacy agency, as well as other important documentation such as your child’s birth certificate.
Like Ben and Lee, most parents find getting a parental order is a positive experience, marking the final step in what is often a long journey to parenthood. With more information out there about the process, it is hoped there will be increased awareness of why the parental order is such a vital legal document.
For further information about parental orders and how to apply, visit Cafcass’ website.
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