Children disputes between parents through surrogacy

little girlParents who have obtained a UK parental order will be recognised as joint legal parents of their child by UK law and will share parental responsibility. If they separate, they should be treated in exactly the same way as any other natural or adoptive parents.  In the case of G v G (2011) a father through surrogacy (who wished to enhance his own position in a separation) attempted to have a parental order overturned on the basis of procedural irregularities and the fact that his wife had deceived him about her intent to leave him. The court decided that a parental order, once made, was final and permanent.

The court will deal with issues of financial responsibility for children in the normal way.  Decisions about who the child should live and have contact with will be made on the basis of what is in the child's best interests, as with any other children disputes.  Parents through surrogacy who have conceived with a donor may want to know whether the fact that one of them is not a biological parent will have any impact on the court's decisions.  There is very little case law about this as yet, but the object of a parental order is to make both parents equal legal parents.

The position is very different for parents who have not obtained a parental order. They might be separating during the pregnancy or during the process of applying for a parental order.  They might also be separating further down the line having never applied for a parental order. This can create serious legal complications.

In the case of JP v LP (2014), the intended parents separated after the birth and missed the deadline to apply for a parental order. This became clear in the course of proceedings concerning a dispute about arrangements for their child  and the result was ultimately that the child was made a ward of the court, with the surrogate remaining the legal mother, although with the intended parents retaining care.  However, in Re X (2014) the President of the Family Division made a parental order in favour of parents who had separated and then reconciled, describing the 6 month deadline as 'nonsensical'.