Due to a change in the law on 3 January 2019, it is now possible for single parents who used a surrogacy service to obtain orders from the English Court, by which they will be recognised as the legal parent.
Under English law, the surrogate is the legal parent after the birth but it is possible to obtain a special order (a ‘parental order’) by which the commissioning parents are recognised as the parents under English law and the surrogate’s rights are brought to an end. A parental order application needs to be made within six months of the birth and the applicant must live permanently in the UK, Channel Islands or the Isle of Man. The court then considers whether or not it is appropriate to make the order and takes into account various factors including whether any payments made to the surrogate are reasonable expenses. Historically, the court has prioritised the welfare of the child as the overriding factor over the constraints against making a parental order set down by Parliament when the legislation was brought in. This has usually resulted in the court making the parental order simply because the alternative (the child’s parents not having the appropriate legal status) is not in the child’s best interests.
Until the change in the law this month, parental order applications had to be made by joint applicants who had to be married, civil partners or living as partners, with the child living with them. There was no restriction on single parents travelling abroad to enter into surrogacy arrangements but these single parents returning to the UK with their new child were not able to take advantage of a parental order. That gap has now been filled, although applicants under the new process have to have a biological connection to the child in order to apply.
There are some transitional provisions as well so that if you are an existing single parent who has not previously been able to apply, you will be able to apply before 2 July 2019 (i.e. six months from the date of the new law coming in) for a parental order. If you would like any information on the above change in the law or to speak to one of our surrogacy specialists, please contact mail@burgessmee.com.
