Surrogacy: who has parental responsibility?
For more information about what parental responsibility is, and the differences between parental responsibility and legal parenthood, click here.
Surrogate parents and parental responsibility
A surrogate mother will have parental responsibility automatically, as well as being a legal parent. If her husband or civil partner is the child's second parent, he or she will also have parental responsibility automatically.
Intended parents and parental responsibility: where the surrogate is married
If the surrogate is married (and so neither intended parent is a legal parent) then it is not straightforward for either intended parent to acquire parental responsibility quickly, although parental responsibility will be conferred when a parental order is granted.
In some cases, it may be possible to apply for a residence order (which confers parental responsibility) before a parental order is granted, but this is only done in exceptional circumstances where there is a particular need for the intended parents to have some immediate legal recognition.
Intended parents and parental responsibility: where the surrogate is unmarried
If the surrogate is unmarried and the intended father is therefore the legal father, he will have parental responsibility if he is named on the birth certificate. If he is not named on the birth certificate, he can acquire parental responsibility by signing an agreement with the surrogate mother or by applying to court for a parental responsibility order.
If the intended father has parental responsibility, he can confer parental responsibility on his partner (the intended mother or the non-biological father) provided the intended parents are married/civil partners. This is because English law allows a parent to give parental responsibility to his/her spouse/civil partner, as a step parent.
The step parent can be given parental responsibility simply by signing a step-parent parental responsibility agreement form with the intended father and the surrogate mother. Step-parent parental responsibility does not confer as secure or permanent a status as a parental order or adoption, but it is often a good interim measure where it is possible.
Contact us if you would like us to advise you on your particular situation and the options available to you both immediately after the birth and in the longer term.
