The Government has published new guidance in regards to surrogacy and the legal process for intended parents (IPs) and surrogates in England and Wales.
The documents, found here, sets out how to start a family through a surrogacy arrangement.
Inside the paper, IPs and surrogates can find important information on starting the surrogacy process, drafting surrogacy agreements, parental order process, parental leave and more.
It’s important to note that an agreement between IPs and a surrogate is not a legally binding document, but rather a statement of intention about how the arrangement will work.
When a child is born through surrogacy, the intended parents (IPs) should apply to the family court for a parental order. The parental order transfers legal parenthood from the surrogate (and her spouse or civil partner, if she has one) to the IPs. It can only be made with the surrogate’s consent.
The parental order process takes place after birth and involves the family court, and a court-appointed social worker. This provides a valuable safeguard for the best interests of the child. Parental order applications are typically heard by magistrates. They will be heard by a High Court judge if the child is born overseas or there are questions over whether the parental order criteria are met.
The vast majority of surrogacy cases in England and Wales are straightforward and it is rare that a parental order to transfer parenthood to the IPs is not considered in the best interests of the child.
Under current laws, the surrogate stays legally responsible for the child until parental rights are transferred. This can sometimes take up to two years.
The laws have been referred to as “outdated and inadequate” and are currently being challenged by charity and campaign group Surrogacy UK.