Surrogacy and parental orders — steps to secure parenthood

Introduction

Surrogacy offers intended parents a pathway to having children when natural conception is not possible or preferred. However, in England and Wales, the surrogate mother remains the child’s legal mother at birth. To become the child’s legal parents, intended parents must apply for a parental order from the family court. This detailed guide explains the surrogacy legal framework, eligibility requirements, the step‑by‑step parental order process and practical advice to help intended parents secure legal parenthood smoothly and protect the welfare of the child.

Understanding surrogacy law in England and Wales

The key legislation regulating surrogacy includes the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008. Under these laws:

– Surrogacy agreements are not legally enforceable; intended parents and surrogates cannot use courts to enforce agreements made before birth.

– The surrogate mother is treated as the child’s legal mother at birth, and if married, her husband or civil partner is the legal second parent.

– Legal parenthood transfers to the intended parents only through a parental order application after birth.

This approach protects all parties’ rights and ensures a court safeguards the child’s best interests before transferring parenthood.

Who can apply for a parental order?

Only the intended parent(s) who are genetically related to the child—meaning the child was conceived using their sperm or egg—can apply. The applicants may be:

– A couple married, in a civil partnership or living as partners in an enduring family relationship.

– A single genetic parent who is the sole intended legal parent.

The law requires at least one applicant to have a genetic connection with the child. Non‑genetic intended parents cannot apply for a parental order but may pursue other legal options such as adoption if needed.

Key eligibility criteria

To succeed with a parental order application the court must be satisfied that:

– The intended parent(s) are over 18 years old.

– The child was conceived using gametes from at least one of the intended parents.

– The surrogate mother and her spouse or civil partner (if any) consent to the parental order, and this consent must be given no earlier than six weeks after the child’s birth.

– The child lives with the intended parent(s).

– The application is made within six months of the child’s birth.

– At least one of the intended parents is domiciled in England and Wales, the Channel Islands or the Isle of Man.

The court will also examine whether any payments made to the surrogate exceed reasonable expenses; unauthorised payments can jeopardise the parental order.

Step‑by‑step parental order application process

1. Gather documentation

You will need to prepare:

– The child’s full birth certificate showing parentage.

– Proof of identity and relationship status of intended parents.

– Evidence of residence and domicile for at least one intended parent.

– Details of the surrogate and her partner’s consent (forms provided by the court).

– Evidence of reasonable expenses paid to the surrogate.

2. Complete court forms

The main application uses Form C51, providing details of all parties, birth information and consent declarations. You must also submit Form C52 (Acknowledgment of Service) which the surrogate and her spouse complete to confirm consent.

3. Submit the application

File your application at the local family court if the child was born in England or Wales, or at The Central Family Court in London if born abroad.

4. Serve documents

Provide the surrogate and her spouse with the Form C52 and related documents. This service must be properly recorded and returned to the court.

5. Court appoints a parental order reporter

The court instructs Cafcass or a social worker to prepare a welfare report under section 13A of the Human Fertilisation and Embryology Act 2008. The reporter interviews the intended parents, the child (where appropriate), and the surrogate if based locally. The report assesses whether criteria are met and recommends whether the parental order should be granted.

6. Attend court hearing

Most straightforward cases are heard by lay magistrates; complex or international cases come before the High Court. A hearing typically involves presenting your case, responding to any issues raised and the judge considering the welfare report. In high volume jurisdictions the court aims to deal with parental orders efficiently, often within 6 to 12 months from application depending on complexity.

7. Receive the parental order

Once granted, a parental order transfers legal parenthood from the surrogate to the intended parent(s). The child’s birth is re‑registered, issuing a new birth certificate with the intended parents’ names as legal parents. The surrogate and her spouse cease to be the child’s legal parents.

Special issues and complex scenarios

Children born overseas

If a child is born abroad via surrogacy, intended parents must apply through the High Court. The process is more formal and may involve extensive evidence and multiple hearings. Early legal advice is essential to understand international legal requirements and potential delays.

Non‑genetic intended parents

Non‑genetic parents cannot apply for parental orders but may seek parental responsibility agreements or adoption orders after the parental order is granted. Legal advice ensures the child’s legal parentage and welfare are protected.

Payments beyond reasonable expenses

If payments to the surrogate exceed authorised expenses, the court may refuse the parental order. Ensure financial arrangements comply fully with UK law to avoid delays or refusal.

What happens if parental order criteria are not met?

If the court refuses a parental order, alternative legal routes such as special guardianship or adoption may be explored. The court always acts in the child’s best interests and considers all relevant circumstances when deciding applications.

Practical tips for intended parents

– Seek early legal advice from us, specialist family law solicitors experienced in surrogacy law.

– Begin gathering documentation well before birth to streamline the application process.

– Ensure the surrogate and her spouse understand their crucial role in consenting and provide consent only after six weeks.

– Avoid any commercial payments beyond reasonable expenses to prevent legal complications.

– Stay organised and maintain clear records of all agreements, communications and payments.

Conclusion

Surrogacy in England and Wales offers hopeful intended parents a rewarding path to family life, but securing legal parenthood requires navigating a careful legal process. The parental order is essential to transfer parenthood from the surrogate to the intended parents and to secure parental rights and responsibilities. Meeting the strict eligibility criteria, preparing detailed evidence and proceeding promptly after birth ensures a smoother journey. Family courts prioritise the child’s welfare throughout and work efficiently to facilitate parental orders in straightforward cases. Where complexities arise, specialist legal advice and family court support help intended parents protect their legal status and build their families with certainty and care.

At Alexander JLO we have many years of experience of dealing with all aspects of family law and will be happy to discuss your case in a free no obligation consultation. Why not call us on +44 (0)20 7537 7000, email us at info@london-law.co.uk or get in touch via the contact us button and see what we can do for you?

This blog was prepared by Alexander JLO’s senior partner, Peter Johnson on 13th November 2025 and is correct at the time of publication. With decades of experience in almost all areas of law Peter is happy to assist with any legal issue that you have. He is widely regarded as one of London’s leading family lawyers. His profile on the independent Review Solicitor website can be found Here