Surrogacy: Legal Parent v Birth Parent

Surrogacy is an ever-growing option for individuals and couples looking to build their families. 

The legal framework surrounding surrogacy can be complex, particularly when it comes to distinguishing between birth parents and legal parents. These terms carry different meanings and implications, and understanding them is essential for all parties involved in a surrogacy arrangement to navigate the process effectively and protect their rights and responsibilities. 

Legal Parents v Birth Parents: Key Definitions

Birth Parents

In the context of surrogacy, the birth mother is the woman who carries and gives birth to the child. In England and Wales, the birth mother is always considered the child’s legal parent at birth, regardless of the child’s genetic connection. If the birth mother is married or in a civil partnership, her spouse or civil partner is automatically regarded as the second legal parent unless they did not consent to the surrogate arrangements. 

Legal Parents

Legal parenthood involves the formal recognition of a person as having the legal rights and responsibilities of a parent, including the ability to make important decisions for the child, such as education and medical care. In surrogacy, intended parents (those who plan to raise the child) must apply for a Parental Order to become the legal parents. 

Legal Framework

The laws governing surrogacy in England and Wales are primarily outlines in the Human Fertilisation and Embryology Act 2008. Key provisions include: 

Automatic Legal Parenthood

At the time of birth, the surrogate (birth mother) is automatically the legal parent, and her spouse or civil partner, is presumed to be the second legal parent. This is true even if the child is not genetically related to the surrogate. 

Transfer of Legal Parenthood

Intended parents must apply for a Parental Order to transfer legal parenthood from the surrogate to themselves. A Parental Order permanently extinguishes the rights of the surrogate and her spouse or civil partner (if applicable) and establishes the intended parents as the child’s legal parents. 

Parental Order Eligibility

Intended parents can apply for a Parental Order if:

• At least one intended parent has a genetic connection to the child. 
• They apply within six months of the child’s birth.
• The surrogate and her spouse or civil partner (if applicable) provide fully informed consent, given no earlier than six weeks after the birth. 

Practical Implications of the Distinction

At Birth

Regardless of prior agreements, the surrogate remains the legal parent at birth. This means she retains the right to make decisions for the child until a Parental Order is granted. 

Establishing Parental Rights

Until the intended parents secure a Parental Order, they may face limitations in exercising full parental authority. For example, there may be a need for the surrogate’s consent for medic al treatments or other significant decisions. 

Potential Challenge

The surrogate’s consent is essential for granting a Parental Order. If the surrogate changes their mind after the birth, the intended parents may face legal challenges, as the surrogate’s rights as the legal parent are protected until the Court determines otherwise. 

If you feel you need advice, please get in touch via our contact page or contact Sigourney Lee-Smith direct (01295 204009 or slee-smith@se-solicitors.co.uk).