Legal rights in the post-birth period (surrogacy)

The Department of Health’s 2018 guidance sets out how parents and surrogates should be supported during this time, making clear that surrogacy (and the transfer of care with consent) is legal and supported by the government.

Who can make decisions for the child during this time?

The surrogate always has parental responsibility, giving her the authority to make decisions for the child. If she is married, her spouse shares parental responsibility with her. If she is unmarried, then the position depends on the circumstances:

• If the child is born outside the UK, neither intended parent has parental responsibility.
• If the child is born in the UK, then the intended parent registered on the UK birth certificate has parental responsibility (but the other intended parent does not).

In practice and where possible, it is sensible for the surrogate (and her spouse) to write a letter confirming that they consent to the intended parents making decisions about the child’s care. Delegated parental responsibility is sufficient for most general purposes, for example dealing with immunisations.  In practical terms, most parents muddle through this period without too much difficulty.

Occasionally more serious issues arise, for example if a child needs hospitalisation and ongoing medical treatment.  In these situations, the intended parents can either seek consent from the surrogate and her spouse or make an urgent application to the family court to acquire parental responsibility via a child arrangements order so that they have the legal authority to make decisions in their own right.

Maternity hospitals and midwives

Maternity hospitals sometimes become anxious about the legality of a child being handed over to the intended parents by the birth mother. In fact, the law requires the child to be handed over before the intended parents make an application for a parental order. There is no need for social services to be involved in the situation (unless there are true welfare concerns, as with any non-surrogacy case) and there is no need for the baby to be handed over off hospital premises, for example in the hospital car park.

Maternity hospitals and midwives dealing with surrogate pregnancies should also consider:

• How to ensure that all those involved (the surrogate, her partner and the intended parents) can attend scans and ante-natal appointments,
• How to ensure that the surrogate is adequately supported by her birth partner during labour, and that the intended parents can also attend the birth of their child,
• Whether, after the birth, the hospital is prepared to discharge the baby and surrogate mother independently of each other,
• Whether the hospital will provide sensitively managed facilities, giving the surrogate space and enabling the intended parents to assume care of their child immediately from birth, and
• Plans for breastfeeding arrangements (the surrogate might be expressing milk, and/or the intended mother might want to establish breastfeeding).

Do social services need to be involved in surrogacy?

As long as the intended parents propose to apply for a parental order, social services do not need to become involved unless there are significant welfare concerns (as in any non-surrogacy situation).

The law says that intended parents who are caring for a child and ‘propose’ to apply for a parental order are not in a private foster arrangement (see the Human Fertilisation and Embryology (Parental Orders) Regulations 2018 Sch 4 para 15). The same regulations (Schedule 1 para 4) also explicitly say that the child cannot be removed from the intended parents’ care once a parental order application has been lodged with the court.

If the parents do not propose to apply for a parental order (for example if they are not eligible, or have not applied within six months of the birth) then they might be in a ‘private foster’ arrangement. However, this will depend on a number of factors, including whether one of the intended parents is a legal parent and whether the surrogate is a family member. If the arrangement is a private foster arrangement (i.e. adults caring for a non-related child), the parents must notify social services, and they commit a criminal offence if they fail to do so. Social services then have a legal obligation to oversee their care on a regular basis.

Who is entitled to leave from work?

Surrogates, like all other birth mothers (including those who relinquish children for adoption) are entitled to full maternity leave and pay.

As from April 2015, section 122 of the Children and Families Act 2014 in addition gave intended parents the right to a special form of adoption leave and pay created for surrogacy.

The rules allow intended parents who intend to apply for a parental order to claim adoption leave for surrogate.  The rules apply equally to different-sex parents, same-sex parents and single parents, although if the intended parents are a couple they must choose which of them claims the main adoption leave (giving the equivalent of maternity leave and pay), with the other then being entitled to paternity leave and pay.

Entitlement begins from the date of birth, whether the child is born in the UK or overseas.  Intended parents may be asked to provide evidence of their due date and their intention to apply for a parental order, which could be in the form of a statutory declaration or a letter from a lawyer representing them in their intended application.  They do not need to provide a MATB1 certificate to confirm the pregnancy because this document is the surrogate’s legal document, not theirs, and because if their surrogate is based outside the UK she will not be issued with one in any event.

What if the worst happens?  Wills and surrogacy

It is always sensible advice to make a will if you are responsible for young children, but in surrogacy cases it is even more important because the limbo period of legal status leaves everyone even more unprotected if someone dies unexpectedly.

All those involved in a surrogacy arrangement should therefore make or update their wills:

• The surrogate and her partner should appoint the intended parents as legal guardians of their child so there is a clear transfer of parental responsibility if they die, and should exclude the surrogate-born child from having any rights of inheritance from them so their own children are not partially disinherited if they die.
• The intended parents should provide for any payments owed to their surrogate to be paid from their estate, and should protect their child (both by appointing guardians to step into their shoes if they die, and by giving their child a clear right of inheritance even if he or she is not their legal child). Intended parents may want to cover other scenarios too. For example, they can provide for the survivor of them to make a parental order application on their behalf, following the case of Re X (2020) in which an intended father died unexpectedly during the pregnancy but his widow was permitted to make a joint parental order application so they could both be recorded on their child’s birth certificate (the father posthumously).  They may also want to provide additional consents for any gametes or embryos remaining in storage, to ensure that the survivor of them would be able to use them if he or she wishes to do so.

Care needs to taken over the definitions used, so it is advisable to have the wills drawn up by a specialist.

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