When surrogacy arrangements are complicated by relationship breakdown, legal uncertainty and unexpected personal tragedy, securing legal parenthood can become significantly more complex.
Surrogacy law is a growing and increasingly complex area of family law, driven by the evolving nature of modern families and advances in assisted reproduction. Our team were instructed in a complex and sensitive matter acting for an intended father in relation to a surrogacy arrangement. This case involved intended parents separating prior to the birth, a rather uncommon scenario. This added a significant layer of legal complexity to an already intricate matter.
For context:
Surrogacy arrangement and family breakdown
The intended parents had entered into a surrogacy agreement while in a relationship and had commenced fertility treatment. The intended father’s sperm and the intended mother’s eggs were both used to create embryos, which were subsequently transferred to the surrogate. The embryo transfer was successful, and the surrogate became pregnant with twins.
However, the intended parents’ relationship broke down, meaning they were no longer living together at the time of conception or birth.
What happened next?
Legal position of intended parents
Under the law of England and Wales, the surrogate is recognised as the child’s legal mother at birth, regardless of the genetic relationship between the child and the intended parents. This remains the case even when the intended father is the biological father and the intended mother is the genetic mother, as in this case.
This often means genetic and intended parents may initially have no legal rights to the child at birth. As solicitors, we are unable to advise on or facilitate the surrogacy arrangement itself; instead, our role is to advise on the legal consequences arising from the arrangement and the steps required to secure legal parenthood legal parenthood for intended parents. In such circumstances, it is necessary to apply for a Parental Order for the intended parents to secure full legal parenthood and parental responsibility, thereby extinguishing the surrogate’s legal status.
However, given the parties had separated and were no longer living together, the usual basis for a joint Parental Order application was not going to be straightforward.
Tragic complication and legal limitations
During the course of the pregnancy, one of the twins experienced health complications and was sadly stillborn. The intended parents wished to apply for a Parental Order in respect of both children; however, this was only possible in relation to the surviving child, as a Parental Order cannot be made in respect of a stillborn baby. This was understandably a very difficult aspect of the case.
As a result, the Parental Order proceedings could only continue in relation to the surviving child.
Applying for a parental order in complex circumstances
We provided clear, detailed, and pragmatic advice on:
- eligibility requirements for a Parental Order
- statutory criteria that must be satisfied under UK surrogacy law
- potential legal or procedural barriers to the application
- the court process, timescales, and procedural requirements involved
- evidence and supporting documentation required to support the application
- ensuring the child’s and intended parents’ legal statuses accurately reflected the reality of their intended family life
- implications of the parties’ separation on a joint Parental Order application.
We also advised the client on the approach he and the intended mother would need to take to parenting arrangements moving forward, with a focus on maintain stability and cooperation in the child’s best interests, despite the breakdown in their relationship.
Challenges with consent and court proceedings
We assisted the intended father in progressing a joint Parental Order application with the intended mother. During the proceedings, it emerged that the surrogate’s consent had been given prematurely and was therefore invalid, as it had been provided before the statutory six-week post-birth period had elapsed.
This created additional procedural complexity, requiring detailed legal submissions and careful navigation of the statutory framework governing surrogacy and Parental Orders.
Despite these challenges, we continued to advance robust arguments in support of the application.
Court decision and legal outcome
The court ultimately granted a Parental Order in respect of the surviving child. This secured full legal parenthood and parental responsibility for the intended father, providing legal certainty and stability for the child moving forward.
Why Tees made a difference
We specialise in guiding clients through complex and emotionally sensitive family law matters, including surrogacy arrangements involving separation, loss and legal uncertainty.
In this case, we provided:
- strategic advice in a highly complex and evolving legal situation
- clear guidance through overlapping biological, genetic and legal parenthood issues
- support through emotionally challenging and sensitive circumstances
- thorough preparation to address the complex issues and to address procedural and consent-related challenges
- a focused, outcome-driven approach to securing legal parenthood.
Our expertise ensured that, despite significant legal and personal complexity, the intended father achieved legal recognition and security for his child.
Giving you the full picture
If you need advice on surrogacy, Parental Orders or family arrangements, our family law team provides clear practical support.
Contact Tees Law Family Team to speak with our specialists today.
