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UK: Legal status of the child born through surrogacy
If the surrogacy arrangement is made in the UK, commissioning parents need to be aware that the surrogate mother is always the legal mother. Her name will appear on the birth certificate. This can be changed subsequently as we shall see very shortly.
The legal father situation is different:
- If the surrogate mother has a legal partner, he will automatically become the legal father unless he can show that he did not consent to the treatment.
- If the surrogate mother is single and pregnancy resulted from self-insemination, the commissioning father can be named and will be recognised as the legal father.
- If the surrogate mother is single and the treatment was in a licensed clinic, the child will be legally fatherless.
Changing the legal status of the child after surrogacy
Adoption: The commissioning parents need to apply to adopt the child in order to be legally recognised as the parents. This is the case even if the child is biologically 100% theirs. The adoption process is the same as in any other situation.
Parental order: This is a quicker route and has the same effect as adoption. There are criteria to be met before a parental order can be granted. These are:
v The baby must be genetically related to one or both of the commissioning parents. This means, a baby resulting from a donated embryo cannot be subject of a parental order. Here, only adoption will do.
v The commissioning parents must be over 18 years of age and married. A single parent cannot use a parental order to gain custody of a child.
v The surrogate mother cannot give consent for the parental order until 6 weeks have elapsed after the birth.
v Application for a parental order must be made within 6 months of the birth
v There has got to be no commercial component in the surrogacy arrangement.
v One or both commissioning parents must reside in the country (UK) and the baby must reside with them. The application cannot be made while the baby is still with the surrogate mother.
As can be seen here, there is a lot of things to consider before embarking on surrogacy. That applies to both the commissioning parents and the surrogate mother. Counselling is certainly a good idea and is actively encouraged for all parties. In the UK, this is mandatory. This allows everybody to consider properly the implications of what they are about to embark upon.
Many countries have yet to enact laws governing surrogacy. This is specially the case with emerging secular democracies like India. It is important for parents seeking parenthood through surrogacy in another country to study the legal situation thoroughly and carefully before making the emotional and financial commitment. If things go wrong in a foreign country, the impact can be devastating.
Last update: June 24, 2011
A quest for parenthood through surrogacy is not always successful. For such prospective parents, adoption is an option to consider