UK Law and Practice Contributed by: Emma Post and Nicki Beale, NE Family Law
• the other woman was alive at that time. Surrogacy
When the surrogate mother, together with any partner who consented to her clinical treatment, agree to the making of the parental order, such agreement must be freely and fully understood (Section 54 (6) Human Embryology and Fertilisation Act 2008). Consent would not be valid if given when the child was less than six weeks old. “Expenses reasonably incurred” can be paid to the surrogate; however, no other money or benefit can be given in consideration of those set out in Section 54 (8)(a)–(d) of the Human Embryology and Fertilisation Act 2008, unless there is authorisation of the court. No parental order must previously have been made under Section 54 or 54A of the Human Embryology and Fertilisation Act 2008. Sole applicants An application for a parental order by a sole applicant is governed by Section 54A of the Human Embryol - ogy and Fertilisation Act 2008, and can be made on the basis that: • the child has been carried by a woman who is not the applicant, as a result of placing in her an embryo or sperm and eggs, or her artificial insemi - nation; • the gametes of the applicant were used to bring about the creation of the embryo; and • the conditions under Section 54A(2)–(8) of the Human Embryology and Fertilisation Act 2008 are satisfied, which mirror the conditions set out in Section 54 (2)–(8A) of the Human Embryology and Fertilisation Act 2008. 1.5 Relevance of Marriage at Point of Conception or Birth Please see 1.3 Requirements for Fathers (When Will a Father Automatically Acquire PR?). 1.6 Same-Sex Relationships PR is automatically acquired by the parent at the time of birth if:
In England and Wales, a birth mother will automati - cally have PR, regardless of genetic connection and regardless of whether the women was in the United Kingdom or elsewhere at the time of the placing of her embryo or sperm or eggs (Section 33 Human Embry - ology and Fertilisation Act 2008). If the surrogate is married or in a civil partnership, her spouse or civil partner also has PR, unless it can be shown that they did not consent to the arrangement (Sections 35 and 36 Human Embryology and Fertilisation Act 2008). The intended parents can apply to the court for a parental order (Form C51), which would extinguish the legal parenthood of the surrogate and her partner and confer it on them. The welfare of the child is the court’s paramount consideration when the court is considering making a parental order, and the eligibil - ity requirements are that at least one of the intended parents needs to be genetically related to the child – ie, the egg or sperm donor (Section 54 (1)(b) Human Embryology and Fertilisation Act 2008). Joint applicants The applicants must be married, civil partners or liv - ing as partners in an enduring relationship (not within prohibited degrees in relation to each other) and there must be no existing parental order. A parental order must be applied for within six months of the date when the child is born (Section 54 (3) of the Human Embryology and Fertilisation Act 2008); however, note the decision in X (a child) (surrogacy: Time Limit) [2014] EWHC 3135 (Fam), which found otherwise, although an application should be made within six months if possible. The child’s home must be with the intended parents, and one must be domiciled in the UK (Section 54 (4) Human Embryology and Fertilisation Act 2008). The intended parents must have attained the age of 17 by the date of the application (Section 54 (5) Human Embryology and Fertilisation Act 2008).
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