The Law Commissions’ new surrogacy recommendations, which include a specific new pathway to enable intended parents (IPs) to be their child’s legal parents from birth, provided the eligibility criteria and pre-conception safeguards are met, will have a significant impact not only for the child, but for the intended parents.
Currently, the IPs are not the child’s legal parents until the Parental Order is made, which can be many months from the birth of the child, leaving the child in a legal limbo. Also, often only one of the IPs is the biological parent, often leaving the non-biological parent more vulnerable. There have been cases where the IPs have split up before the Parental Order is made and this has thrown into question whether the eligibility criteria of a child having its home with the IPs both at the time the application is made and at the time the order is made, is met.
Whilst Judges have been able to purposively interpret the meaning of ‘home’ to enable separated IPs to continue to apply for a Parental Order together, if the new recommendations are made law, then this limbo is removed, and both IPs can be certain that they will be legal parents from birth. In any subsequent divorce or separation, the court would treat them as equal legal parents, just as other any other separating parents.
Natalie Sutherland heads the Modern Families Department at Burgess Mee Family Law. She is a partner specialising in surrogacy and fertility law, she advises on the whole spectrum of family law issues.
She is a Resolution accredited specialist in private children law and high-net-worth financial remedies. She has won several awards including
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