The number of clients seeking specialist advice on Fertility Law is growing. Our Senior Associate, Tom Main, discusses what a Parental Order is and why it is needed.
In Scotland, a parental order is a court order that transfers legal parenthood of a child born through surrogacy from the surrogate mother (and her spouse, if applicable) to the intended parents. This order legally recognises the intended parents as the child's parents, granting them full parental responsibilities and parental rights and extinguishing the legal rights of the surrogate.
Any individual considering using a surrogate mother should seek independent legal advice at the earliest opportunity and a robust surrogacy agreement should be entered into. A surrogacy agreement is in place to regulate the pregnancy and the associated costs with that. However, many people don’t appreciate that when the child is born, the surrogate mother will still be considered the child’s legal mother and the intended parents have no legal standing until such time as a Parental Order is granted by the Court.
There are a number of criteria set out in the Human Embryology and Fertilisation Act 2008 which must be met in order for the Court to consider granting the application for a Parental Order. Some of the key criteria are:-
- The application for a Parental Order must be made within 6 months of the child’s birth
- The child must be genetically linked to one of the intended parents
- The surrogate mother must give her consent to the Parental Order but this cannot be earlier than six weeks after the birth.
- The reporting officer and curator ad litem, (the person appointed to safeguard the rights of the child) appointed by the Court, must be in support of the Parental Order being granted
- The child must live with at least one of the intended parents at the time of the application and at least of the applicants must be domiciled in the United Kingdom.
- The intended parents must be civil partners, married or living together in an enduring relationship.
It is important to understand that it is not automatic that a Parental Order will be granted and each case will be determined on its own facts. Clients should seek specialist Family Law advice at the earliest opportunity.
If you are considering surrogacy or are already on that journey and need advice on the next legal steps, our experienced Family Law team is here to help. Contact us today to find out how we can support you.