| Under a surrogacy arrangement a couple ('the commissioning couple') ask a woman ('the surrogate mother') to carry a child for them. The agreement is that shortly after birth the surrogate mother will hand the child to the commissioning couple for them to bring up. Sometimes the surrogate mother is a friend or relative of the commissioning couple, other times she is paid. |
The surrogate mother (the mother who gives birth) will be the legal mother. However, under section 30(1) of the Human Fertilisation and Embryology Act 1990 the commissioning couple can apply for a parental order which will make them the parents of the child and will end the parental status of the mother. The requirements for obtaining a parental order are strict. They include that the couple must be married; that one of them is the genetic parent of the child; and that it is in the child's interests that the order be made. If it is not possible to apply for a parental order, the commissioning couple could seek to adopt the child f or apply for a residence order. If there is a dispute over who should look after a child, the court will decide, on the basis of the welfare principle in section 1 of the Children Act 1989, of who is best able to care for the child.
Who is the father of the child?The father is the genetic father of the child. But there is much more to the legal position than that. It is necessary first to consider the presumptions that the law uses in order to establish that a man is the genetic father the child. Second, it is necessary to look at the Human Fertilisation and Embryology Act 1990 which deals with cases of assisted reproduction. This allows for some men who are not genetic fathers to be legal fathers of a child, and other men who are genetic fathers not to be the legal father.