Surrogacy: Lack of Parental Order a “ticking time bomb”
4 June 2015 by Charlotte Knappett
Following on from my previous blog there is further news in relation to surrogacy, coming in the form of a warning from a senior High Court Judge.
Justice Theis has warned that many children born through surrogacy arrangements could end up “parentless and stateless” due to the failure by the parents to secure the protection of parental orders.
Indeed failure to secure parental orders can have serious legal consequence for all concerned, the intend parents, the surrogate and of course the child(ren). This was echoed in a recent judgment where the Judge made quite clear that “ It is only a parental order that provides lifelong security for the child, as it recognises the commissioning parents as the legal parents of the child with all the positive benefits that flow from it. Without that order their legal relationship with the child is best described as precarious; in most cases without such an order being in place, the surrogate mother (and her husband, if she is married) remain the legal parents of the child.”
This warning comes as the number of surrogacy arrangements continue to steadily rise in Britain but also with many commissioning parents going overseas. It is understood that while around 2000 children are born to surrogate mothers for British commissioning parents every year, just 241 parental order applications were made in 2014.
Mrs Justice Theis, one of three High Court judges hearing applications for surrogacy Parental Orders, has warned that the current situation is a “ticking legal time bomb” . She reiterated “If no steps are taken to regularise the legal relationship between the intended parents and the child by way of an application to the court, the surrogate remains the child’s legal mother and retains parental responsibility.”
Mrs Justice Theis also expressed concern about the psychological impact on children who discovered that their family situation was legally vulnerable. Without a Parental Order, problems can arise in the event of the death of one parent, divorce or separation, or when the child’s passport needs to be renewed. Until a Parental Order is obtained, the child is also still able to make a financial claim against the estate of the surrogate mother.
These concerns were raised when Justice Theis was speaking at a symposium on international surrogacy organised by the International Association of Matrimonial Lawyers in London. Some lawyers believe that part of the problem is parents who mistakenly believe that once they have a passport for their child, or they are named on the birth certificate, no further legal step is necessary.
Obtaining a Parental Order is usually a straightforward step but it is a vital part of the surrogacy process.
For more information about surrogacy or applying for a Parental Order, please click here