It's National Surrogacy Week this week and Antonia Felix and George Irving of the Mishcon de Reya Modern Families Group have answered some key questions about the parental order process in England. This week aims to raise awareness, dispel myths and celebrate the community of surrogates, intended parents and professionals.
Why do you need a parental order in England and Wales?
In England and Wales, the person (so in the case of surrogacy, the surrogate) who gives birth is the child's legal mother, regardless of genetics or intention. A parental order transfers legal parenthood from the surrogate (and, in some cases, their spouse or civil partner) to the intended parent(s), giving them permanent legal recognition as the child's parents. You can only have 2 legal parents in England and Wales.
How long does it take to get a parental order?
The process typically takes around 9 to 12 months, although timescales can vary depending on the court and the individual circumstances of the case. An application is made 6 weeks after the birth of the child and before 6 months.
Top 5 things to think about when starting a surrogacy journey
- Talk to other people who have been through the journey so you can ask questions and chat through their experiences - you don't know what you don't know!
- Get specialist legal advice early, especially for international surrogacy journeys where you need advice in multiple jurisdictions.
- Understand the fertility and medical process and who can assist you with different stages of the process.
- Think ahead the practical arrangements after the birth. E.g. if you are on an international journey need to stay in that country for a period after birth, take time off work and receive medical care for your baby. If you already have children, you should consider what their arrangements will be during this period.
- Obtain immigration advice if it's an international journey to find out if you can pass down your nationality, what passports your baby is entitled to and timings to get home.
Can I do a surrogacy journey as a single applicant?
Yes. Since 2019, single people have been able to apply for a parental order in England and Wales, provided they meet the criteria. This means surrogacy is an option for single intended parents as well as couples.
Do I need to be genetically linked to my child if they are born via surrogacy and if so, what other options are there to become the legal parent of my child?
To obtain a parental order under the current law in England and Wales, at least one intended parent must have a genetic link to the child. If there is no genetic link, a parental order is not available, but adoption may be an alternative route to becoming the child's legal parent, depending on the circumstances.
How do I bring the baby home?
If you are on an international journey, you should seek specialist immigration advice. The route home will depend on your/your partner's nationality and citizenship.
What about costs?
Commercial surrogacy is illegal in England and Wales, but the courts recognise that people travel abroad for commercial surrogacy arrangements. The costs of an international journey can fluctuate. We strongly recommend using reputable service providers on well-trodden routes that have clear and supportive local laws regarding surrogacy arrangements. For domestic surrogacy, only "reasonable expenses" can be paid to the surrogate. You should keep a record of all costs from the start of the process, as the court will expect you to be fully transparent with the costs incurred.