I’m a single parent through surrogacy – should I apply for a parental order?

Following our last blog about the law change for law change for single parents through surrogacy, we’ve been talking to single mums and dads considering applying for parental orders. We understand the family court is busy with applications and we have already made a number on behalf of both single mums and single dads. 

Existing single parents have been given a six month window of opportunity to apply if they want to, which closes on 2 July 2019, so it’s important to make a decision. Although later applications may still be possible, the court will have to give permission, so they will be more complicated. 

Do I really need a parental order?

A parental order is the legal mechanism which fully and permanently transfers legal parenthood to a parent through surrogacy. It extinguishes the motherhood of the surrogate (and the parenthood of her spouse) and makes a parent their legal parent and gives them parental responsibility. Although couples routinely apply for parental orders immediately after the birth, until 3 January 2019 single parents were not able to apply. That means that many single parents have lived under the radar, sometimes for years.

If you are a single parent through surrogacy without a parental order, your surrogate will still be your child’s legal mother in the U.K. and in most cases she will technically be the only person who has the right to make decisions about your child’s care. You may not be a legal parent and will usually not have parental responsibility yourself.

Nonetheless you may be asking why you need a parental order if you haven’t experienced any problems parenting without one in practice so far. The answer is that your legal position remains unresolved and legal issues could arise for you or your child at any time long into the future. A parental order will take away any uncertainty and put you in the position you should always have been in as a parent.

So what does a parental order give me?

A parental order will give you a U.K. birth certificate for your child which confirms that you are your child’s only legal parent and the only person with decision-making parental responsibility. It will permanently extinguish your surrogate’s remaining rights and parenthood status.

It is difficult to set out all the things that might mean in practice but here are some examples:

• As a single dad of a sick child, you will have the right to make all decisions needed without any fear that a doctor will require your child’s ‘mother’s’ consent.

• If you are applying for (or renewing) a British passport for your child, you can sign the application form knowing you have the right to apply and won’t be asked for your surrogate to sign or give her consent.

• You can sign the forms to apply for a nursery or school place for your child, declaring with honesty that you have parental responsibility. 

• You never need to worry about a referral to social services being made because you don’t have the legal status you should.

• If you die, your child will have automatic rights of inheritance from you (and from grandparents and wider family members) if you don’t have a will or if a family will makes a general gift to ‘my children/grandchildren’ etc.

• If you die, your child will benefit from pension and life insurance payouts as they should.
• If you have a new partner who wants to adopt your child, you won’t need your surrogate’s consent.

The benefits may well be long term rather than immediate, but a parental order is an insurance policy against future complications, and we would definitely recommend that you apply if you are eligible. 

How do I apply for a parental order?

You will need to apply to the family court using Form C51. If your child was born in England and Wales you can apply to your local family court; if your child was born overseas you should apply to the Central Family Court in London.  

There will be one or more court hearings (over a 4-9 month period) and a light touch assessment carried out by a Cafcass officer, and you will need to file a written statement and other evidence to satisfy the court that you meet the criteria for a parental order and that the order is necessary to meet your child’s lifelong welfare needs.