When a child is born through surrogacy, the intended parents will need to apply to the court for a parental order. This transfers legal parenthood from the surrogate (and her husband or civil partner, if she has one) to the intended parents.
This is an important process because without a parental order you or your partner may not be your child’s legal parent in the UK. This means that you may:
- not have the authority to make decisions about your child’s education and medical care
- face legal complications should you and your partner separate or divorce
- need to find and involve the surrogate in future decisions involving your child.
If you have a pre-birth contract or agreement with the surrogate you will still need to apply for a parental order. This is because under UK law, any contracts or agreements signed before the child is born are not enforceable.
Using a surrogate from abroad
The law in England can still apply even if the surrogacy took place in another country. This means that you and your partner must obtain a parental order to be considered the legal parents in the UK.
You can find guidance on international surrogacy in the UK Border Agency’s Inter-country surrogacy leaflet.
The parental order process
The court will ask Cafcass to provide a Parental Order Reporter, to help it make a decision based on the parental order application. Parental Order Reporters work for Cafcass and are fully qualified social workers who represent the interests of children involved in family courts.
The Parental Order Reporter’s role is to consider the child’s best interests and to investigate the circumstances of the case in line with the parental order criteria.
When the referral is received from the court, Cafcass will send you a letter to let you know that we have become involved in the case. The Parental Order Reporter will usually arrange to meet with you, see you with your child, and ensure that the surrogate freely consents to the application. This work typically takes between eight to twelve weeks.
The Parental Order Reporter will then provide a ‘Parental Order Report’ to the court before the final hearing which will recommend whether a parental order should be made.
What the Parental Order Reporter does
The Parental Order Reporter will meet with you, the intended parents, and will see you with your child. They will also investigate whether all the criteria for making a parental order are met. If they are not, the court may not be able to make a parental order.
The Parental Order Reporter will also need to establish whether the surrogate and her legal partner, if she has one, consent to a parental order, and make sure that they have a full understanding of what consenting to a parental order means.
Beyond this, the extent of the enquiries made will vary in each case. However the Parental Order Reporter may want to:
- make checks with the local authority and the police, to see if there is any information held which might be relevant to the safety of the child – your permission will be sought before this happens
- find out about you and your child’s journey so far, such as the background to your application, or why you chose surrogacy
- understand your family structure and the child’s place within this
- discuss whether the child will grow up knowing about their origins.
At all times the Parental Order Reporter will be considering the welfare of the child both now and in the future. This will also be the most important issue for the court when deciding whether to make a parental order.
Julian and Warren explain how their Parental Order Reporter Helen worked with them through their application for their daughter Alexia.
The criteria considered for parental orders
What to consider before the Parental Order Reporter visits
The Parental Order Reporter will write to you before they visit you, and will tell you what you need to prepare.
You might want to start bringing together the following information:
- your marriage or civil partnership certificate
- your child’s birth certificate
- bank log, or details of any payments you have made to the surrogate
- your child’s ‘personal child health record’ (commonly known as the PCHR or red book).
Advice on preparing a parental order application
The court will usually ask for a statement setting out how the surrogacy came about, along with any supporting documents that show how you fulfil the conditions for a parental order to be made. This may be requested by the court at the first hearing and can be prepared in advance.
It’s a busy time with a new born baby – hear what Ben and his partner Lee did to help prepare their parental order application.
The court experience
Generally the court will list an initial ‘directions’ hearing to ensure that the required evidence is available and in order. At this hearing, the court will request a statement and evidence to be filed by the intended parents (which can be prepared in advance), decide on the timescale for the Parental Order Report, and list a date for the final hearing. If there are complications, there may be more than one directions hearing.
The final hearing is where the decision regarding the parental order will be made. You are generally welcome to bring your child to the final hearing, as it can be a celebratory day.
Hear Ben talk about how his Parental Order Reporter Maureen worked with him and his partner Lee through the court process when the applied for a parental order for their daughter Eleanor.
Advice on the documentation you will need
It is important to include comprehensive evidence within your statement, because the court will request further evidence if it considers that any is missing, which can introduce delays. This will usually be requested at the first hearing and you can prepare it in advance.
Parental Order Report Angela gives advice on what records and documentation you should collect during your surrogacy journey, to help when it comes to making a parental order application.
This information can help show how you fulfil the conditions for a parental order, and may include:
- a DNA test or information from the clinic which performed the IVF procedure
- a marriage or civil partnership certificate, or other evidence of being in a relationship
- birth certificates to show your age and the age of your child
- when your child was handed into your care and where you have been living with them since then
- A A101A court form showing written consent of the surrogate (and her partner if applicable), with a full notarised translation if the surrogate’s first language is not English
- Bank statements and receipts showing the timings and amounts of payments made, and what these were for.
Julian and Warren: Getting a parental order secured our rights as parents
Our story started a few years ago when we discussed what it is to be a parent. Warren and I both believed that to have a child is a blessing and we felt that we would make great parents. We first looked into adoption and then discovered surrogacy which led us to talking with a surrogate in South Africa. When we had decided we wanted to start a family using this process, I informed my mother and family in the UK.
When I did this, my sister asked why we hadn’t asked her to be a surrogate as she was more than willing to help us have a family. I trawled the internet looking at website after website and I passed all the information over to my sister to read as I wanted her to be fully informed of what she could expect. From conducting my own research day in and day out, my sister also doing the same, the picture of surrogacy became clearer and clearer.
I first heard of the parental order through looking at online blogs and people’s comments they’d put on the internet as they’d been working through the surrogacy process. During my research I kept coming across the phrase ‘parental order’ – over and over. I had never heard of it so began to look into it to find out what it was all about. I realised that obtaining a parental order meant that our status as parents of our child would be final and we would have the birth certificate re-issued with both of our names on: in my mind this would be the total affirmation that our family was complete.
The process was fairly straightforward. In hindsight, I think contacting the court well in advance helped the whole process from the outset. I had completed so much research that by the time Alexia was born, I knew the exact date I would submit our application for a parental order to the court. I called the magistrates’ court and collected the paperwork for the parental order weeks in advance. There was clear documentation of the forms we needed to fill in and how to proceed, although I was unsure of the timeline of the application process. I looked into the requirements and who needed to be involved. We informed the midwife of the parental order process before we had applied to court so that she could arrange for the local authority to contact us, make checks and assess my sister’s situation.
Working with Cafcass
My main concern during the process was that I was missing something. I feared I’d be failing my family if we got to court and the application was turned down because I had missed something. My sister was initially worried because she thought Cafcass was an organisation there to find fault in our living conditions, way of life or our relationship in order to reject the application. None of us had ever heard of Cafcass. I wondered, if the local authority had been involved to date, why another organisation accountable to the Government was involved too. I realised that Cafcass is only appointed by the court once proceedings have started and they carry out their own checks independent of the local authority. After the initial hearing, the Parental Order Reporter’s job was to gather information on our situation and submit a report to the court. The court then makes a decision on the application at the final hearing.
After our Cafcass officer introduced herself, she told us her role and explained the reports she needed to make. She was very helpful, came to see us in the house and interviewed us as part of her work, and explained to us what she was doing every step of the way. Overall, the process of applying wasn’t too complicated; we just had one hiccup in the process. We didn’t know the timeline for the application process so didn’t have enough time in the UK to complete it.
Warren and I think it’s really important to get a parental order as it secures your rights as a parent and also allows you to carry out the more general practicalities of being a parent. In South Africa this is issued before fertilisation takes place and parents have legal responsibility as soon as the baby is born – I found it difficult to understand why UK law dictates a wait of six weeks before an application can be made. We could have just left things and moved to South Africa leaving my sister on the birth certificate; however, we knew that many organisations require signatures from both parents, including schools, clubs, doctors, applying for passports, traveling. This list is endless. As a parent I knew I didn’t want to have to get a signature from my partner for little things to do with school.
Ben and Lee: How getting a parental order helped complete our family
When Ben and Lee decided they wanted to raise a child together, they began by researching the various options available to them, including adoption and fostering. After a lot of thought and consideration they chose to use the surrogacy pathway as they wanted to fulfil a fundamental need they have; that of having a child genetically linked to them. They contacted a reputable surrogacy agency who worked with them to identify a suitable surrogate to carry their child.
The surrogacy agency was able to inform them about parental orders, what they were, and the process of applying for one. As biological father, Ben’s name was on their daughter Eleanor’s birth certificate, but Lee’s was not. Having a parental order in place would mean that Lee’s name would also be on the birth certificate and both would have legal parental responsibility to make important decisions about Eleanor’s life, including her education and medical care.
“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 dentists. These are the things you just don’t think of until they come along!”
Peace of mind
Ben and Lee started their application for a parental order the day after Eleanor was born. Although they realised their application couldn’t be handled before Eleanor had reached six weeks of age, they wanted to get the ball rolling. Ben wrote a letter to the court explaining the reason they were applying early was because they wanted to be punctual, responsible and have peace of mind knowing the process was underway.
A Parental Order Reporter from Cafcass was assigned to consider Eleanor’s best interests and help the court understand the nature of the surrogacy arrangement. She spoke to Ben and Lee and compiled information about their surrogacy journey, and also carried out some important safeguarding checks.
“Initially, we were apprehensive of Cafcass as we didn’t know who they were,” Ben says. “We received the court papers which informed us that a Cafcass officer would be assigned to our case. We didn’t know what to expect but Maureen, our Parental Order Reporter, explained everything to us and we were reassured.
“We were also unfamiliar with the court setting. Our case was seen by the Senior Judge at the County Court and the environment there was very foreign and quite intimidating. Maureen knew the judge and was familiar with the court setting which put us at ease. She was also able to advise us on court etiquette – I made sure to wear a smart suit and tie!”
To assist the process, Ben and Lee ensured they had clear records of their surrogacy arrangement, including bank statements and records from the surrogacy agency, as well as other important documentation such as Eleanor’s birth certificate. They were mindful of the legalities and made sure to record everything carefully, submitting the right documentation and evidence to the court on time. By organising their evidence in advance it was easy for their Parental Order Reporter to provide all the relevant information to the court to help inform its decision on the application.
Ben offers some advice to other couples who want to apply for a parental order: “Make sure you are organised, aware of the deadlines and fill in all forms as honestly and accurately as possible. No question is a silly question and it’s important that you speak to your Parental Order Reporter about any concerns – we found that being able to talk any issues through with ours relieved a lot of stress. They are not there to put up barriers. Communication over the phone helped us to keep things running smoothly.”
After surrogacy: how to speak to your child about their origins
If your child was born through surrogacy it is important that you think about the best way to tell them how they were born. This can help your child grow up feeling secure about their origins and their relationship with you.
When should you tell your child?
It is usually better to tell your children when they are still young. Many parents like to be open with their child from as early an age as possible.
This prevents any risk of them finding out by mistake, or doubting their genetic connections as they grow older. The Donor Conception Network suggests the goal of early ‘telling’ is that a child should grow up ‘never knowing a time when they didn’t know’.
Ultimately, however, when to tell your child is up to you. Remember that telling your child is not a one-off conversation and children are likely to have more questions as they grow older.
How to explain what surrogacy means
Different children will respond differently to news of their origins. It is up to you and your partner to decide how much they should know at different stages growing up.
Many parents find that celebrating their unique family circumstances can make their child feel special and proud of who they are.
You should try to prepare for any questions your child may have, helping you to answer them confidently. This can prevent your child from feeling that surrogacy changes their relationship with you in any way.
Family storybooks can be a great way of telling your unique family story and making sure your child is secure with their origins and their identity. They can take many forms, such as a scrapbook or a memory box. You might want to consider a digital format, which could include a video diary.
You might want to include information about the treatment, images, or mementos from the surrogate and her family, or stories of your child’s development. Sharing this with your child as they grow older can help:
- explain their origins;
- give them a strong sense of identity;
- bring you closer together.
How will your child react?
All children will react differently. However there is no reason to think that your child will be upset by news of their origins, particularly if you are honest with them from an early age.
How you act when you tell them can have a big impact on their reaction. If you wait until your child is older, there is more chance that they will be confused or angry that you have not told them sooner. They are also more likely to understand that this means they may not have a genetic connection with one of you.
However your child reacts, it is important that you try and understand how they might be feeling and answer any questions they have. Remember, what matters most to your child is having a loving and secure relationship, not their genetic connections.