Surrogacy Legal Parent
Legal parenthood is dealt with under sections 33-53 of the Human Fertilisation and Embryology Act 2008 (HFEA) which states that the surrogate is the legal mother because she will be giving birth. If she is not married then depending on the circumstances around the insemination or embryo transfer, one of you may be the legal father or the second legal parent. If the surrogate is married, neither of you will be a legal parent according to UK law unless other provisions have been made prior to insemination or embryo transfer. The surrogacy legal parent status is not automatic even if you are biologically connected to the child.
In some destinations you will need to be very careful about the documents that you obtain from the surrogate to prove her marital status. You need to consider obtaining a marriage certificate, death certificate or divorce decree from the surrogate as appropriate.
It may be that the law in the destination where surrogacy takes place is such that you are recognised as legal parents in that country. That legal parent status is lost as soon as you leave the destination country hence children being referred to as ‘stateless’.
In order for you both to become the legal parents according to UK law, you will need to apply for a Parental Order. A Parental Order will extinguish all legal rights that the surrogate has to your child. The Order will pronounce you both as the legal parents and a new birth certificate will be issued.
Following surrogacy in the UK, you have a few options as to who will be the second legal parent following surrogacy. The legal mother is always the surrogate but the second legal parent can be either one of you. Please ask us for advice about this. There are clear advantages and disadvantages to each option and certain forms need to be completed correctly and in a timely manner with the clinic prior to insemination or embryo transfer.
In the UK, legal parenthood is determined prior to insemination or embryo transfer and dependent several factors. Once it is determined, rarely can it be undone without agreement and a Parental Order. The financial and legal implications of the wrong decision will be long term.
Please call our surrogacy lawyers for advice on surrogacy legal parent status today on 01727 884 688 / 07980 917882 or e-mail Harjit directly on firstname.lastname@example.org
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