Surrogacy: practical issues post-birth for intended parents

Although pre-birth orders can be obtained in certain jurisdictions, such as California, intended parents (IPs) are not recognised as a child’s legal parents in the UK until a parental order is obtained. This can often leave IPs in a legal limbo from the date of the baby’s birth until the granting of a parental order. 

An application for a parental order cannot be made until six weeks after the baby is born, meaning IPs have to navigate the first few weeks of parenthood without the legal certainty they would otherwise have. We explore below some of the practical issues that can arise in this period and how to address them. 

Who has parental responsibility?

Parental responsibility refers to all of the rights, responsibilities, duties and authority that a person has in relation to a child and their property. This gives you the right to be involved in decisions such as naming a child, their accommodation, their education and medical treatment.

Once granted, a parental order will transfer parental responsibility to the IPs. However, prior to this date, IPs do not have parental responsibility for their baby and responsibility instead lies with the surrogate. The other person with parental responsibility will depend on the surrogate’s personal circumstances: 

• if the surrogate is married, she and her spouse will share parental responsibility
• if the surrogate is not married and the child is born outside of the UK, only the surrogate will have parental responsibility
• if the surrogate is not married and the child is born in the UK, one of the IPs can be registered on the birth certificate with the surrogate and will therefore have parental responsibility. The other IP will not have parental responsibility until the parental order is granted.

In order to avoid any complications during this time period and allow the IPs to make decisions about their child’s welfare, the surrogate (and her spouse if applicable) should write a letter giving consent for the IPs to make decisions about the baby’s medical treatment and care. If any serious issues arise prior to the granting of a parental order, IPs can either seek consent from the surrogate (and her spouse) or, if the surrogate is not contactable or unwilling to consent, make an urgent application to the family court to acquire parental responsibility via a child arrangements order. 

Practical considerations at the hospital 

Following the baby’s birth, the law requires that the baby is handed over to the IPs before they can make an application for a parental order. There is often confusion about this handover and where it can take place. However, the Department of Health has been clear that the handover can be inside the hospital immediately after birth. It does not need to take place off the premises and hospital staff should not suggest this. It is worth discussing this prior to the birth to ensure that all staff are aware of the arrangements, and the surrogate can include details of what is to happen with the baby in her birth plan.

It is important to discuss the following prior to the birth of the baby to avoid any confusion or delays post-birth:

• consider if the hospital is willing to discharge the baby and surrogate separately. Each trust will have their own policy in relation to this, but it may be that IPs are able to take the baby home even if the surrogate needs to remain in hospital following the birth
• if the surrogate is discharged but the baby needs to remain in hospital following the birth, is the hospital willing to recognise the IPs as the main caregivers? As set out above, the surrogate should provide written consent for the IPs to make decisions about the baby’s medical treatment in their absence
• consider plans for breastfeeding, if this is intended. Does the surrogate intend to express milk for the baby initially? Alternatively, does the intended mother intend to establish breastfeeding? Hospital staff should be aware of the arrangements to ensure that any preferences can be carried out and supported.

Parental leave 

Both surrogates and IPs are entitled to parental leave, in different forms. 

Surrogates are entitled to full maternity leave and pay in accordance with the government statutory policy and any enhanced policies their employers may offer. 

IPs are entitled to a special form of adoption leave and pay. The rules apply equally to different sex partners, same sex partners or single parents. However, if the IPs are a couple they must choose which one will claim the main adoption leave. Main adoption leave is equivalent to maternity leave and pay, with the other parent claiming the lesser entitlement which is equivalent to paternity leave and pay.  Many employers do however offer shared parental leave which gives the opportunity for both IPs to divide their time more evenly.  

The leave and pay entitlement begins from the baby’s birth, whether born in the UK or abroad, and is granted on the basis that the IPs intend to apply for a parental order within six months of the baby’s birth and they expect that order to be granted. In reality, it will be in the child’s best interest for the order to be granted in most cases and therefore most IPs will meet this threshold.

Wills 

Both the surrogate (and her spouse) and the IPs should consider updating, or making, wills. 
The surrogate (and her spouse) should update their wills to appoint the IPs as the legal guardians of their child in the event of their death. It is likely that they will also want their will to exclude the child from any potential inheritance in order to ringfence this for the surrogate’s own children and/or family. 
IPs should update their wills to cover the following:

• provide for any payments owing to the surrogate to be paid from their estate
• appoint a legal guardian for the child in the event of their death
• provide inheritance for the child, even if they are not the child’s legal parents at the time of their death
• provide for the other parent to make a parental order application on their behalf so that both parents can be recorded on the child’s birth certificate
• provide any additional consents to the other parents for any embryos remaining in storage to allow the surviving parent to use them if they wish.

Reforms 

The Law Commission of England and Wales, together with the Scottish Law Commission, published a report on 29 March 2023 which, amongst other reforms, provided a new pathway for IPs to become legal parents from the birth of the child rather than having to wait to obtain a parental order. The new pathway incorporates screening and safeguards, including medical and criminal records checks, independent legal advice and counselling for both IPs and the surrogate. The pathway is also subject to the surrogate having the right to withdraw consent, however it would certainly provide more stability and certainty for IPs, avoiding many of the practical issues raised above.

The Government’s interim response was provided on 8 November 2023, stating that a full response would be published in due course but that parliamentary time did not allow for the recommended changes to be taken forward at the time. Of course, there has subsequently been a change of government and it waits to be seen if the suggestions will be progressed.  

Frequently asked questions 

Do social services need to be involved in the process pre- or post-birth?

No, if the IPs propose to apply for a parental order within six months of the baby’s birth, social services do not need to be involved unless there are welfare concerns about the child. 

Can a surrogate take the child back once it has been handed to the IPs?

No, a child cannot be removed from the IPs care once a parental order application has been lodged at court. It is therefore even more important to ensure that the application is made promptly and as soon as possible. 

What happens if you do not apply for a parental order?

If no parental order is applied for, the arrangement may result in a private foster arrangement. If so, the IPs must notify social services to ensure they are aware of the arrangement. It is a criminal offence not to notify social services if a private foster arrangement is undertaken.

A private foster arrangement can lead to issues such as:

• not having legal authority to make basic decisions about the child’s medical care or education
• not being able to travel abroad with the child without the surrogate’s consent
• legal complications if the IPs separate or divorce
• social services involvement
• difficulty obtaining a passport for the child.