Who is a parent and who is a child? Why legal parental status matters to us all.

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We explain why how children have been conceived and who is a legal parent matters so much in the surrogacy context.

Who is a parent and who is a child? This might seem obvious but, given modern medicine, the answer can be pretty complicated.

Many people aren’t aware that, if a child is born through a surrogacy arrangement, the surrogate mother will be the legal mother of the child. If the child is born in the UK the surrogate mother will always appear on the child’s birth certificate as the mother. If the surrogate is married/in a civil partnership, her spouse/partner will be the child’s father/second parent on the birth certificate rather than the intended father. Even if treatment has taken place at a UK fertility clinic, only one (not both) of the intended parents can be named on the birth certificate. This can mean the intended parents have no legal status in relation to their child, even if they are the biological parents.

The position can be more confusing where the arrangement is international - while surrogacy is legal in the UK, commercial surrogacy is not. Many intended parents can only find a suitable surrogate abroad. Intended parents ensure they comply with every legal requirement they need to in the country where the surrogacy arrangement takes place, but are often not told by lawyers or fertility clinics in those countries to seek legal advice here. Understandably most parents think that, if they have a foreign birth certificate or a foreign court order which names them as the parents, they don’t need to do anything else. Unfortunately, foreign birth certificates and court orders do not change the analysis under English law. Often, even where professionals such as GPs are aware the child has been born through surrogacy, no-one realises this legal problem needs to be addressed.

Not being a legal parent is a problem in lots of different areas of law. It can affect nationality, parental responsibility (which is the right and responsibility to be involved in decisions about a child’s life such as consent to medical treatment), inheritance and financial responsibility for a child. It’s easy to see lots of situations where definitions such as “parent” and “child” are relied upon and not knowing a child’s origins might cause problems. For example, Freya is born via a surrogacy arrangement. Her surrogate mother, Angela, is married. Fred and Frieda are Freya’s intended parents and their Wills leave their estate to their child. However, Freya is not their legal child and therefore will not inherit from them. Conversely, if Angela’s Will leaves her assets to her children, Freya will inherit a share of Angela’s estate, which may also be unintended.

These problems can easily be avoided by the intended parents applying to the English court for a parental order – this will result in a new UK birth certificate being issued showing the intended parents’ names, ensuring the intended parents are the legal parents. There is a six month deadline from the date of the child’s birth to make the application but the court can sometimes accept applications after this time limit has expired . If the parents cannot obtain a parental order, they will need to apply to adopt their child – something which is only possible while the child is under 18. After the child reaches 18, no remedy is available.

Unfortunately many parents are unaware of the need for a parental order. To give an idea of the scale of the problem, it’s estimated up to 2,000 children are born every year through surrogacy arrangements to UK parents, but last year only 241 applications were made for parental orders. Recently one of Britain’s judges described the situation as a “ticking legal time bomb”.

Our tip for anyone dealing with parents or children is to ask simple questions about how children were born to check whether the parents need to consider taking further action now; and to remember that, where surrogacy is involved, nothing short of a parental order or adoption will be enough to secure their legal status as parents in English law.

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