Chrissy’s Family Law Corner

Dear Chrissy,
My husband and I have been trying for a baby for a while now and after several rounds of failed IVF, we are considering surrogacy in Cyprus and think we have now found a suitable surrogate. We will be using my egg and my husband’s sperm.
We have found a clinic in Cyprus who has introduced us to a surrogate who we are very happy with. We are in the process of entering into a contract there which makes us the baby’s legal parents once the baby is born. Do we need to do anything in the UK when we bring the baby back home or can we just rely on our Cypriot contract? Any advice would be appreciated.
Kind regards,
Gabriella

Hi Gabriella,
Thank you for your message. I’m sorry to hear about your difficult fertility journey but I am pleased to hear that you and your husband may have found a suitable surrogate in Cyprus.
It is good to be asking these questions before you embark on surrogacy. Whilst I appreciate that you will be entering into a contract with the surrogate in Cyprus, you must be aware that you and your husband will not automatically be the legal parents of the child under UK law when you return with the baby. You will need to apply for a parental order (see below) when you return to the UK to have the legal parenthood recognised under UK law. It is important to do this as soon as possible – if this step is not undertaken, the surrogate and her husband, if applicable (see below) will remain the legal parents of the child, which is certainly not what you want!

Legal mother of the child: Under UK law, the legal mother of a child at birth is always the person who gives birth, irrespective of whose genetic material has been used. Therefore, the surrogate will always be the legal mother at the time of birth. This means that parenthood will have to be transferred to you and your husband by a court order in the UK.

Legal father of the child: The situation of the legal father is more complicated and depends on the marital status of the surrogate:
Married surrogate
If your surrogate is married to a man, then under UK law, her husband will also be a legal parent of the child. This will be the case even though your egg and your husband’s sperm were used in the surrogacy arrangement and the child is not biologically related to the surrogate.
Unmarried surrogate
If your surrogate is not married to a man at the time of birth, then your husband will be considered the legal father under UK law.

Parental order: The only way for you and your husband to acquire legal status is by obtaining a parental order. This is the bespoke order that gives you parental rights and extinguish the surrogate’s parental rights. It is similar to an adoption order but the key difference between a parental order and an adoption order is, that an adoption order is about replacing parental status e.g. where you have a child whose birth parents are unable to care for the child. A parental order is intended to reflect the parental status as always intended.
A common question is do we need to do this? We would always advise that you should. Aside from the fact that you, and potentially your husband, will not be recognised as the legal parents of your biological child, without a parental order children born via surrogacy are left in a state of legal limbo. So, for example, inheritance or citizenship rights may be impacted if a child is not the subject of a parental order.
From what you have told me, it sounds like you meet the criteria for obtaining a parental order under section 54 of the Human Fertilisation and Embryology Act 2008. I have set out these criteria below for your reference. Please note that the application must be made within 6 months of the child’s birth (although there is some flexibility around this).

Criteria for making a parental order under section 54 of the Human Fertilisation and Embryology Act 2008:
a) Child carried by a woman who is not one of the applicants and is biologically related to at least one of the applicants;
b) Applicants must be married, in a civil partnership or in an “enduring family relationship”;
c) Application must be made within 6 months of the child’s birth;
d) Child’s home must be with the applicants;
e) Either or both of the applicants must be domiciled in the UK;
f) The applicants must be over 18;
g) Surrogate (and husband if applicable) consent to the making of an order;

Christina is an experienced Family Lawyer at Collyer Bristow advising on all areas of relationship breakdown including divorce and separation, children issues, cohabitation disputes, nuptial agreements and financial claims. Christina has particular expertise in dealing with complex private law children cases, often with an international and religious dimension.  The financial dispute cases that Christina works on tend to be high value and often also have an international dimension with trust interests or complex corporate structures.

 

Christina read Philosophy and Theology at Oxford University and before joining Collyer Bristow, Christina worked in Banking and Finance at DWF.

 

If you would like to contact Christina for a confidential chat, please do so at [email protected]

 

 

Christina Pippas
Associate
Direct:  +44 20 7468 7219
Reception:  +44 20 7242 7363
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