For parents by virtue of surrogacy, why is it your baby, who is tied to you by your DNA, is not legally your child until you get a parental Order ?
And why, under UK Law, is the only legal parent the surrogate, who may not share and DNA with the child in question ?
This topic came up recently when the story of Adam Frisby and Jamie Corbett hit the news.
Adam and Jamie welcomed a baby girl via a surrogacy arrangement in the US.
In their situation, as is often the case, their surrogate was not married. Thus under UK Law, the only legal parent, on their return to the UK, was their surrogate who was, as one would expect, still living in the US.
In the US, the intended parents are named on the birth certificate as the baby’s parents. This position is different to the UK, where you cannot obtain a birth certificate for your child naming you as a parent until you are granted a Parental Order.
UK law provides that you must obtain your surrogate’s unfettered and unconditional consent to applying for a Parental Order. Valid consent cannot be obtained until the date that is 6 weeks after the birth of the child. When the surrogate is abroad, their consent must be witnessed by a notary. This is the first delay in the process.
In an international surrogacy, once you have your surrogate’s consent, providing the various other criteria in the Human Fertilisation and Embryology Act 2008 are met, you can apply to the High Court for a Parental Order.
As Adam and Jamie discovered, this process can take in the region of 10 months from start to finish. For that entire period, under UK law, the child’s only legal parent is the surrogate who gave birth (and, if she is married, her husband will be the legal father under UK law).
The process to obtain a Parental Order is, arguably, onerous, and requires what is often a lengthy meeting with a CAFCASS social worker (the Parental Order reporter) who will report to the Court on what is in the best interests of the child. For many intended parents, quite understandably, it feels invasive and thoroughly inappropriate to have a social worker visiting you and observing you with your own biological child, before writing a report to the Judge about it.
Of course, society must balance the welfare of the child, and this area law engages public policy.
Adam and Jamie put a petition to Parliament which has, rightly, gained significant traction.
The Law Commission has put forward draft legislation proposing reform which would enable intended parents to be legally recognised, under UK Law, as their child’s legal parents from birth in most scenarios. This was proposed in March 2023. At the time of writing this has not been considered nor approved by parliament. Thus for the time being, we are where we are and the route to becoming the legal parent under UK law, sometimes of your own biological child, may still require a wait time of up to a year.
Rayden Solicitors are experts in all areas of Family Law, including surrogacy. Please contact us to speak to one of our team.
