The Current Framework – A Guide To The Current Laws In Respect Of Parental Responsibility
The 1st – 7th August marks National Surrogacy Week in England & Wales. Irwin Mitchell’s Fertility Team of Excellence will be posting a series of articles exploring the past, present and future of surrogacy laws. Today, we explore the current framework and some important practical reminders with our expert, James Henshall.
The current law in respect of surrogacy within England and Wales is outdated, and there are significant changes on the horizon designed to modernise the law as a result of the reforms proposed by the Law Commission of England and Wales together with the Scottish Law Commission.
One of the key features of the proposed reforms is the introduction of a 'new pathway' for domestic surrogacy agreements. This pathway includes - if certain conditions are met – a mechanism for intended parents to become the legal parents from birth, subject to the surrogate's right to withdraw consent.
Currently, the legal process for transferring parenthood involves a court order (a Parental Order) after the child's birth, which can sometimes be a lengthy process. Even in the most straightforward of cases, a surrogate is unable to provide the necessary consents within the first 6 weeks of birth. But after accounting for the period for the Parental Order Report, and the increasing delays in arranging court hearings, the entire process can take between 6 – 12 months.
The granting of legal parenthood will confer parental responsibility, but it is important to note that legal parenthood and parental responsibility are two distinct legal concepts. Legal parenthood is about the status and connection to a child. Parental responsibility, on the other hand, pertains to the rights and duties to make decisions about a child's care before they turn 18. It is important to consider who the legal parent will be from an early stage. As the law currently stands, at birth, the surrogate will be a legal parent, as will their spouse or civil partner. If they are not married, it can be the intended father whose sperm was used. But even in the latter circumstance, only one of the intended parents will be the legal parent from birth, and therefore only one will have parental responsibility.
The delay in obtaining parental responsibility is a particular issue faced by many. I have seen a number of clients take their newborn home from hospital without any issues, they have all of the day-to-day care as was always anticipated, only to find that there are limits to the decisions they can make. For example, I have had clients who needed a letter from their surrogate before being able to register their child with a GP and who cannot apply for a passport because these are decisions that require parental responsibility.
This can place a burden on a surrogate to remain more involved than perhaps they anticipated, having to provide permission for decisions. And it causes a great deal of distress for many parents, feeling that they are less able to make decisions than others who have not been limited by the law relating to surrogacy. It is completely inconsistent with how their newborn is actually being cared for as part of their family.
One way to limit the issues this causes is to apply at an early stage for an interim child arrangements order confirming that the newborn lives with the intended parents. This will confer parental responsibility upon them whilst the parental order process is ongoing. However, in my experience this is not always straightforward. An additional application is required, with a different legal criterion to the parental order application. And I have been questioned in court whether this is necessary on a number of occasions. But to most intended parents it is necessary, and it should not be such a battle for parents to obtain parental responsibility.
