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Monday, December 22, 2014

Becoming legal parents after surrogacy – it may not be too late

Nicola Scott, a leading solicitor at specialist fertility and family law firm Natalie Gamble Associates, explores a recent ruling by a UK judge criticizing the six-month window in which you UK parents of surrogate children can apply for a parental order.

Over the last decade surrogacy has become a mainstream family building method for gay parents in the UK.

With many of these prospective parents travelling abroad (particularly to the USA), as well as finding surrogates across the UK, the demand for surrogacy is increasing whilst the law is trailing behind trying to keep up.

Under UK law, the surrogate and her spouse (if she is married) are the legal parents of the child. This is the case even if a child is born in another country; one that recognizes surrogacy and treats the intended parents as the legal parents.

Parental orders (court orders made by the UK family court after the birth) are the UK legal solution – completing reassigning parenthood from the surrogate mother and her spouse to the intended parents.

Once a parental order is made, the child’s birth is registered in the UK and the parents are issued with a UK birth certificate. In cases involving two gay dads, the birth certificate names them as ‘parent’ and ‘parent’.

Last year alone there were 167 parental orders granted to UK parents and this year is set to see a sharp increase on that figure.

However, not all parents through surrogacy have made this crucial court application, making these figures only a shadow of the true numbers of surrogacy arrangements entered into by Brits.

For example, gay dads who have gone to the US to have a surrogate child may both be recorded as parents on their child’s US birth certificate and not realize that they are not legal parents at home in the UK.

However, there is good news. Last month the President of the High Court Family Division (one of the most senior judges in the UK) described the law’s six-month deadline for making an application as ‘nonsensical’ and said that in some cases parents may be able to apply to sort out their parenthood late. For parents through surrogacy who have not applied to court in the UK, this opens the door to resolving things fully.

Why should they do so? In simple terms, without a parental order, they are not the legal parents of their child in the UK. This creates a whole can of worms that may wriggle free at some point in the future.

The purpose of the parental order goes beyond a child’s identity. The status of ‘parents’ brings adults the ability to make crucial parenting decisions and financial responsibility, and children the acquisition of nationality status and automatic inheritance rights.

Without it, a distinct vulnerability – which could be picked up at any point in a child’s life – looms over parents and children. There might be serious problems if the parents separate or divorce, if one of them dies or if other family members contest their children’s inheritance.

They also may not have basic authority to make decisions for their child, which could raise its head at a time when their child is ill or there is some other real issue they need to deal with.

For those who have missed the deadline, now is the time to apply. For others who are at different stages in their surrogacy journey, the parental order provides a unique solution to the otherwise awkward application of UK law on parenthood.

In addition, there may be other options to bridge the unavoidable gaps that surrogacy provides for those who cannot yet obtain a parental order (such as single parents), and parents in this situation are urged to seek legal advice in order to regulate their status.

Unlike the position five years ago, parental order applications are now common, particularly in London (including in the High Court, where all parental order applications following international surrogacy are heard). There has been a string of surrogacy cases over the past five years, and no applications have been refused.

Essentially, there is no reason not to apply, and it need not even be expensive to do so (many parents represent themselves). Legal advice, no matter what stage you are at, is sensible to ensure that you are getting the most from the legal solutions available.


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