This information was last updated: 15 February 2016
Parental Orders can only be made by the following provisions of Section 54 of the Human Fertilisation and Embryology Act 2008 (HFEA 2008) and Part 13 of the Family Procedures Rule 2010 (FPR 2010).
Below is the outline of the evidence that is required before a Parental Order can be made under Section 54 of the Human Fertilisation and Embryology Act 2008 following a Surrogacy agreement.
To grant a Parental Order, the court must be satisfied that all the relevant conditions in Section 54 of the HFEA 2008 have been met.
Section 54 (1) to (5) HFEA 2008 provides for the preliminary conditions:
- Section 54 (1) HFEA 2008 provides that an application can be made if a child has been carried by a woman who is not one of the Applicants, as the result of placing in her of an embryo or sperm and eggs or her artificial insemination and the gametes of at least one of the Applicants were used to bring about the creation of the embryo, and the condition in sub-sections (2) to (8) were satisfied. The Statements filed by the Applicants must set out the details of the surrogacy and of the surrogate mother including where the treatment took place, e.g. following IVF treatment or a fertility clinic.
- Section 54 (2) HFEA 2008 provides that the Applicants are husband and wife, or same sex civil partners or two people who are living as partners and in an enduring family relationship, the relationship of the Applicants must be set out in their Statements in support of the application.
- Section 54 (3) HFEA 2008 provides that an application must be made during the period of the 6 months beginning on the date on which the child is born, this should be set out clearly in the Statement. There may be limited circumstances a court can consider an application issued after the period of 6 months – see Re X (a child) (Surrogacy: Time Limit) (2014) EWHC3135 (Fam)
- Section 54 (4)(a) HFEA 2008 provides that the child’s home must be with the Applicants at the time they made the application and when the court is considering making the Order. Section 54 (4)(b) of HFEA 2008 provides a requirement that either or both of the Applicants must be domiciled in the United Kingdom or the Isle of Man. When filing and serving the Statement evidence must be lodged with the court that one or both of them were born here and have retained their domicile of origin or if they were born elsewhere that this jurisdiction is their domicile of choice.
- Section 54 (5) HFEA 2008 provides that at the time the Order is made both the Applicants must have attained the age of 18, there should be evidence filed to support this.
Once the preliminary conditions have been met and satisfied it is then necessary to look at whether the Respondent’s consent requirements have been obtained as provided for in Section 54 (6) and (7) HFEA 2008. The court must be satisfied Section 54 (6) that both the woman who carried the child and any other person who is a parent of the child is not one of the Applicants (either the husband of the woman, provided he consented, the sperm donor in certain specific incidences or woman or the female civil partner of the surrogate, provided she consented) have freely, with full understanding and unconditionally given their consent.
Section 54 (7) HFEA 2008 requires that the consent of the surrogate was given not less than 6 weeks after the birth.
The court will require clear and detailed evidence that the surrogate (and her husband or civil partner if applicable) has consented freely and has been fully informed about what she is agreeing to.
The rules set out in Part 13 of FPR 2010 require that the Respondent is a party to the proceedings and she must be served with the application at least 14 days before the hearing or first Direction. The Respondent must file an acknowledgement of service within 7 days of being served with the application. The court will require acknowledgement of service.
Commercial surrogacy is not lawful in the UK. However, the court has discretion to authorise payments other than for expenses reasonably incurred. Section 54 (8) HFEA 2008 provides that the court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by either of the Applicants or in consideration of (a) the making of the Order; (b) an agreement required by sub-section (6); (c) the handing over of the child to the Applicants or (d) the making of any arrangements with a view to the making of the Order, unless authorised by the court.
The Statements of the Applicants must deal with the issues and set out fully and frankly the sums paid. Any payments in excess of reasonably incurred expenses must be clearly identified. The Statement must set out the sum in sterling as well the currency it was paid in.
The above is guidance to the legislation that governs Parental Orders and the preliminary conditions that will need to be met to satisfy the Court before an order can be made.
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