What are the alternatives to a parental order?

What is a parental order?

If you have a child through surrogacy, you will need to apply for a parental order. Such an order has the effect of transferring legal parenthood from the surrogate to the intended parent(s) and will remove all parental rights and responsibilities from the surrogate.

Why do you need to apply for a parental order?

A parental order will confirm your legal rights as being the child’s true and legal parent rather than the surrogate.

Without a parental order, you may not be considered to be the child’s legal parent which could present difficulties in obtaining passports or making decisions for the child’s health and educational needs for example.

Who can apply for a parental order?

You can either make the application as an individual or with a partner, if you are having a baby through a surrogate. However one of you must be domiciled (resident) in the UK and biologically related to the child. Hence either you or your partner must have donated the egg or sperm used to create the embryo. You must also:

• Be aged 18 or over
• Be living with the child at the time when the application and order is made
• Be married, civil partnered or in an “enduring family relationship” if you intend to apply with a partner
• Have the surrogate’s consent and that of her spouse/partner
• Have only paid reasonable expenses to your surrogate
• Apply within 6 months of the child’s birth; however the court will consider applications made after this deadline.

What if I do not meet the above criteria? Is there an alternative to a parental order?

As highlighted above, you will be precluded from applying for a parental order if you (or your partner) are not genetically related to the child. In such circumstances, an adoption order may present as an alternative pathway to parenthood.

Adoption orders are the closest alternatives to parental orders but the process tends to be longer and more complicated. It follows that an adoption order will normally only be considered where the legal requirements for a parental order are not met.

As with a parental order, the adoption order extinguishes the legal parenthood of the surrogate. It establishes a lifelong connection with the child and confers the following rights/responsibilities on the adopting parent(s):

• Parental responsibility — This encompasses all the rights, duties and responsibilities to make welfare decisions on a child’s behalf. In practical terms, that means that the parent can have a say in any major decisions affecting the child, such as which school they should attend or whether they should receive medical treatment.
• Financial responsibility — This includes a duty to maintain the child even if the parent does not live in the same household.
• Inheritance rights — This means that the child can inherit from the parent in the event that they die intestate.
• British nationality — In most cases, the parent should be able to transmit their British nationality to their child.

What is the difference between a parental order and adoption?

The main difference is that all of the adults must agree to a parental order, including the surrogate. That is contrasted with adoption orders which can be imposed by the Family Court.

How do I apply for an adoption order?

The Adoption and Children Act 2002 sets out the legal process to be followed in England and Wales. If you are planning to make sure an application, it is usually a good idea to seek preliminary legal advice. In summary the process is as follows:

• The first step is to provide written notice to your local authority of your intention to apply for an adoption order. You then need to wait at least three months (but not more than two years) before making your application.
• Prior to making your court application, you must be over the age of 21 and you must have lived with your child for a specified period of up to three years. That being said, it is sometimes possible, particularly in a surrogacy case, to seek leave of the court (formal permission) to apply at an earlier stage.
• A social worker will be assigned to your case. They will undertake background checks and will meet with you in order to investigate matters on behalf of the court. They will feedback any concerns/recommendations to the court via a formal report.
• The court will assess your eligibility. You will need to either be domiciled in the UK or have been habitually resident in the UK for at least 12 months. The court will also examine your relationship status and, perhaps most importantly, whether an adoption order will meet your child’s lifelong welfare needs.
• Assuming the child’s birth parents have parental responsibility for the child, they will be invited to consent to the adoption. The court does however reserve the power to waive consent.
• The court process from start to finish can take several months and can involve a number of court hearings.
• If, at the end of the process, the court grants an adoption order it will issue an adoption certificate recording the legal parents of the child. This will replace the child’s birth certificate and will become their primary source of identification.

The case of J v K (Adoption) (2021) EWRC 115

The above case concerned an application for an adoption order brought by a single non-biological mother (J).

J decided to engage the services of a US surrogate after undergoing unsuccessful fertility treatment in the UK. An embryo was created using a donor egg and donor sperm and was transferred to the surrogate (K) in May 2018. This resulted in a successful pregnancy and child L was born in early 2019.

When J returned to the UK approximately 5 weeks later, she was contacted by the local authority who had been alerted by the UK border agency. Thereafter, she was visited by a social worker who concluded that there were no welfare concerns.

After obtaining British citizenship for child L and a British passport, J issued an application for an adoption order. She did so in order to secure her legal parental relationship with L and obtain recognition as his legal parent.

The case provides a helpful summary of the court process and the legal framework within which J’s application was considered.

When giving judgment, the presiding Judge Mrs Justice Theis explained as follows:

“The legal framework within which this application is being considered is because, as a matter of law in this jurisdiction under s.33 of the Human Fertilisation and Embryology Act 2008, the respondent, K, remains L’s legal parent, even though that position is different in the United States. If this court makes an adoption order it will serve to extinguish K’s legal relationship with L and will secure J as L’s legal parent. An adoption order will provide the legal security for L and J; the effect of such an order is made very clear by s67(1) of the Adoption and Children Act when it states as follows:

“An adopted person is to be treated in law as if born as the child of the adopters or adopter.”

It has been described previously as a transformative order. It is. It has lifelong consequences, and so the court rightly has to ensure that it has all the information available to be able to make such an order.”

J had the support of the local authority. Their recommendation was that an adoption should be made. Below is an extract from their report:

“L is at the centre of the applicant’s life. She clearly enjoys parenting, is focused on L’s needs and tries to always be the best parent she can. L presents as a happy, contented toddler, strongly attached to the applicant and comfortable in his life. L is completely accepted and integrated into the applicant’s extended family. The applicant is aware the circumstances of L’s life are different to most children and L will ask questions about his background. She will need to answer skilfully to help L comprehend and be comfortable with his past. Above all, J loves L and wants to become his legal mother throughout his childhood by granting of an adoption order.”

Ultimately Mrs Justice Theis was satisfied that J had met the relevant criteria and procedural requirements. Having considered all the information, the local authority’s recommendation and the welfare checklist, Mrs Justice Theis granted the adoption order on the basis that it would meet L’s lifelong welfare needs and would reflect the reality of the situation.

This case highlights the importance of considering an application for an adoption order in cases where the intended parent(s) of a surrogate born child is not eligible to apply for a parental order.

Alternative orders

If you are not able to apply for a parental order or an adoption order, there are other orders the court can make. In particular, it is worth considering the following alternative options:

• Special guardianship — Similar to an adoption order or parental order, if a special guardianship order is made in your favour, you will be granted parental responsibility for the child. However, if made alone, the special guardianship order does not remove the rights of the birth parent.
• Wardship — A child can be made a ward of court. This means that the court will be appointed as their legal guardian and will make important decisions regarding the child’s upbringing.
• Child arrangements order — If you did not wish to remove the rights of the surrogate, you may consider applying for a child arrangements order, setting out with whom the child would live and if/when they would spend time with the surrogate. Such an order would not remove or reduce the parental responsibility of the surrogate and would mean that they should be consulted on matters such as the child’s education and health.
• Specific issue orders and prohibited steps orders — Such orders can resolve specific issue. They can either approve of a particular step or action being taken or they can prohibit a parent from taking a certain step or action.