Surrogacy: who has parental responsibility?
For more information about what parental responsibility is, and the differences between parental responsibility and legal parenthood, click here.
Surrogate parents and parental responsibility
A surrogate mother has parental responsibility automatically, as well as being a legal parent, when a surrogate child is born. If her husband or civil partner is the child's second parent, he or she also has parental responsibility automatically. (This is the case for the purposes of UK law even if your child is born outside the UK and the surrogate and her husband are not treated as the legal parents in their own country).
Intended parents and parental responsibility: where the surrogate is married
If the surrogate is married (and so neither intended parent is a legal parent), it is not straightforward for either intended parent to acquire parental responsibility quickly, although parental responsibility is acquired when a parental order is granted.
In some cases, it might be possible to apply for a residence order (which confers parental responsibility) before a parental order is granted, but this is only done in exceptional circumstances where there is a particular need for the intended parents to have some immediate legal recognition.
Intended parents and parental responsibility: where the surrogate is unmarried
If the surrogate is unmarried and one of the intended parents is legal parent, then the intended parent who is the legal parent acquires parental responsibility immediately after the birth by being registered on the UK birth certificate (this does not apply if the child is born outside the UK). Alternatively, he or she can sign a parental responsibility agreement with the surrogate mother (witnessed in a UK court) or apply for a parental responsibility order.
If the intended parent has parental responsibility, he can confer parental responsibility on his partner (the other intended parent) provided the intended parents are married or civil partners. English law allows a parent to give parental responsibility to his or her spouse or civil partner, as a step-parent.
The step-parent can be given parental responsibility by signing a step-parent parental responsibility agreement form with his or her partner and the surrogate mother (witnssed in a UK court). Step-parent parental responsibility does not confer as secure or permanent a status as a parental order, but it is often a good interim measure.
Contact us if you would like us to advise you on your particular situation and the options available to you both immediately after the birth and in the longer term.