Parental Rights in Surrogacy

In 2019, the Law Commission of England and Wales and the Scottish Law commission called for a new surrogacy pathway to be considered to replace what are deemed to be antiquated laws.

The process of surrogacy is recognised by the UK Government as a legitimate way of building a family. However, the laws surrounding the process are considered to be ineffective and outdated.

A surrogate mother is a woman who voluntarily gives birth to a child on behalf of another person or couple. This person/ couple enters the agreement on the understanding that they will undertake the role of the child’s legal parent(s) (the intended parents).

As the law stands, when a baby is born to a surrogate mother, she automatically assumes the full legal responsibility of that child. In the event that she is married, her husband or wife would also automatically assume full legal responsibility, irrespective of whether they were biologically the child’s parent. This is until such time that the intended parents can make an application to the family courts to assume legal responsibility.

Whilst this is the case, in the event that the birth mother is not married, it is possible for the surrogate mother to put the intended mother on the Birth Certificate as the second legal parent, therefore providing her with legal responsibility.

The problem with this system is that most surrogate women have no intention of being the “mother”. They enter the process on the understanding that they are having the baby for someone else and not for themselves.

Similarly, because the intended parents are unable to make any decisions on behalf of the child, they are powerless when the baby is born and rely heavily on the support of the surrogate until such time that the court order has been granted.

To add further pressure, the court order can only be applied for once the child has been born. This process can then take up to six months to complete, which can prove to be a physically and mentally draining period for all parties.

To reflect the wishes of today’s surrogates and intended parents, campaigners are urging the Law Commission to make a number of fundamental changes that would streamline the surrogacy process and make it simpler for all parties involved.

One of the main changes that campaigners are looking for is to have parental orders pre-authorised so that the intended parents automatically assume legal responsibility as soon as the child is born. This would allow intended parents to make those all-important decisions such as registering the birth and opening bank accounts; as well as being able to address any medical issues that may arise.

Of course, surrogate mothers also require a certain level of protection, and campaigners have suggested that these women retaining the right to object to the court order for a short period of time after birth.

This new “pathway” would be instrumental in putting the child at the heart of the process and would provide comfort and confidence to both the surrogate and the intended parents.

Nicholas Clough, Family Law Solicitor commented:

“The law surrounding surrogacy is extremely complex and of course, incredibly thought-provoking. The proposed changes to the Law would have a significant impact on the lives of all those involved. Decisions regarding surrogacy should not, however, be made in isolation but rather with giving due consideration to other factors impacting upon the family set up. It is therefore vital to seek legal guidance should you be considering surrogacy”.

Whilst these changes are still being debated and even once they have been decided upon, should you find yourself in a situation where you need to apply for a parental order, Price Slater Gawne are here to help.

The process is one that our family solicitor Nicholas Clough is very familiar with. We are friendly and approachable firm and we will happy to help you and your family achieve a quick and painless resolve. Should you wish to speak to Nicholas, he can be contacted on 07538 385956 or via email nicholas.clough@psg-law.co.uk.