The legislation relating to surrogacy is UK-wide but there are different approaches to the court systems in Scotland and Northern Ireland. In England and Wales, the law regards the birth mother as the child’s legal mother. If married, her spouse/civil partner would also be recognised as a legal parent.
Legal parenthood is transferred from the surrogate to the intended parent(s) through a parenting order or adoption. To be eligible to apply for a parenting order at least one of the intended parents(s) must be a genetic parent of the child born to them through surrogacy. Intended parent(s) submit a parental order application to the court within six months of the child’s birth. If there is no genetic relationship to the child adoption is the only way that intended parent(s) can become the child’s legal parent(s). In these circumstances a registered adoption agency must be involved in the surrogacy process.
The surrogate must consent to a parental order application at least six weeks after the birth (this provides the surrogate with a cooling-off period). It is possible that during those six weeks the surrogate will bond with the child and decide to keep the baby. In most surrogacy arrangements the baby is handed over immediately after being born. However, if the surrogate refuses consent for the intended parent(s) parental order application they can apply for a Child Arrangement Order. In these circumstances the court considers what is in the best interests of the child. In practice the child usually ends up with the intended parents, even if the surrogate is named as a legal parent.