The legal position of same sex parents in relation to their children can be complex, depending on the circumstances in which the children were conceived, the legal status of the adults involved, their gender and – because of changes in legislation – the date on which the child was born.
Under English law, irrespective of any biological connection to the baby, the woman who gives birth to that baby is treated as the child’s legal mother. If she is married or in a civil partnership, her husband or civil partner will be treated as the child’s other parent.
That clearly is not what is intended by the couple who make the arrangement with the surrogate. Their solution is to apply to the family court for a parental order within 6 months of the date of the baby’s birth provided:
- At least one of them is the biological parent of the child;
- The surrogate mother and her husband/civil partner fully and freely consent to the order. That consent cannot validly be given until the baby is 6 weeks old;
- Only reasonable expenses have been paid to the surrogate; and
- The baby is in the care of the intended parents at the point when the application is made to the court.
By contrast in the USA, a surrogacy contract is legally binding. In many US states it is possible to go to court before the birth of the baby to have the court approve the agreement and make an order enabling the intended parents to be recorded as the parents on the birth certificate. However, although this enables the baby to be given a US birth certificate, that certificate does not mean that the intended parents are recognised in England and Wales as the parents. Therefore, in order to bring the baby into the UK to live, the intended parents must obtain entry clearance to bring the baby into the UK and then must seek a parental order from the English court in order to put the right legal framework on their relationship with the baby.
Hughes Fowler Carruthers has advised a number of intended parents about both domestic and international surrogacy arrangements and has good experience in this area.