What happens when parents through surrogacy separate?
8th February, 2023
One of the biggest considerations for parents going through a divorce or separation is deciding on arrangements for their children.
Whilst making child arrangements can be a struggle for all parents, this can be a particularly worrying process for parents whose children have been born through surrogacy, especially if they are yet to obtain a parental order.
If you have children through surrogacy and are going through a divorce or separation, then be sure to have a read of this article, as we are looking at what happens when parents through surrogacy separate.
What is a Parental Order?
Under current UK law, parents through surrogacy are not automatically recognised as legal parents of their children (regardless of where they have been born). Instead, parents through surrogacy are required to obtain a parental order from a UK family court to be recognised as legal parents of their children.
However, the process for obtaining a parental order can take several months. If you and your partner decide to separate before your parental order has been finalised by the court then you will not be recognised as legal parents of your children, and this could impact how the law applies if you cannot agree arrangements for your children.
Separating after a Parental Order has been granted
After a parental order has been granted by the UK family court, you will be recognised as the legal parents of your children and parental responsibility is shared between the two of you.
If you and your partner decide to separate or divorce once you have been granted a parental order, then the child arrangements process during your divorce, and the law, is the same for you as it would be for biological parents breaking up.
As with other parents, you and your partner will need to come to an agreement on arrangements for your children during your divorce or separation. These child arrangements include deciding on who they will live with, where they will live and the contact they will have with the other parent if you are no longer living together. Other decisions will need to be made regarding their schooling and medical care, if necessary.
If you and your partner are unable to come to an agreement on these matters, then you should seek legal advice from a specialist divorce solicitor, and the matter may be taken to the family law court for a decision to be made by the judge. Although you and your partner already have a parental order granted, your surrogacy situation may need to be explained to the court during this process. If you would like to find out more about Child Arrangements Orders, including how to apply and the entire process, then be sure to have read over our Child Arrangements Orders Explained article.
The decided outcome for your children and family is dependent on how things have been managed to date, and whether your children currently have a primary carer or care is shared equally.
Separating without a Parental Order being granted
If you have not yet been granted a parental order by the court after having your children through surrogacy, then you could be in a more complicated position if you and your partner decide to divorce or separate. In certain circumstances, the court may allow you to seek a parental order to be recognised as legal parents of your children before you are formally divorced or separated.
Although the law on this continues to evolve, not having a parental order can result in issues arising regarding your status and right to apply for child arrangements orders during your divorce or separation, and you may have to involve your surrogate in the court process, regardless of where they reside. However, the Court’s priority is to ensure any involved children are protected and they will do their best to protect a child’s right to maintain a relationship with their parents if a relationship has already been established.
If you and your partner decide to separate or divorce before your child has been born through surrogacy, then the situation may be even more difficult again.
Ward Hadaway can help you
Our experienced divorce solicitors are here to support you through this tough time. If you are a parent through surrogacy going through a divorce or separation, and are wanting to discuss your situation, then contact our team today. We will work with you to decide the next best steps to take for your situation, guiding you through the entire process.
If you would like support or advice about any of your family circumstances, please complete the form below and a member of the team will be in touch to find out more.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
This page may contain links that direct you to third party websites. We have no control over and are not responsible for the content, use by you or availability of those third party websites, for any products or services you buy through those sites or for the treatment of any personal information you provide to the third party.
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