Legal rights in the post-birth period (surrogacy)

baby feetBecause UK law does not recognise the intended parents as the legal parents of their child from birth, there is a period of time during which the family is in legal limbo, even though the parents assume care of their child immediately from birth.

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 (and if the intended parents are married or civil partners, the other intended parent can be given parental responsibility via a step-parent parental responsibility agreement).

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 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).

Maternity hospitals and midwives dealing with surrogate pregnancies should consider:

teddy bear

  • 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
  • How the parties plan to deal with breastfeeding arrangements (the surrogate might be expressing milk, and/or the intended mother might want to establish breastfeeding). 

Social services

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 logic is that the Child and Family Court Advisory and Support Service (CAFCASS) will have oversight of the situation via the court process.  The law therefore 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 2010 Sch 4 para 12). The parental order regulations 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.

Maternity/ adoption leave

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

As from April 2015, intended parents additionally became legally entitled to a special form of adoption leave which gives the equivalent of maternity/paternity leave and pay for intended parents through surrogacy.  The rules allow intended parents in surrogacy cases who intend to apply for a parental order to claim adoption leave, and to choose which of them claims the equivalent of maternity leave and pay, with the other being entitled to the equivalent of paternity leave and pay. The rules apply equally to hetorosexual intended parents and same-sex couples.

We are very proud to have spearheaded the campaign to win these rights for parents who, until 2015, had no legal right to any time off work after their child was born.