Surrogacy and Parental Orders: Who Is the Child’s Legal Parent?

30/07/2026
|In Family Law
|By admin

Surrogacy is an arrangement in which a person carries and gives birth to a child for another person or couple, known as the intended parent or intended parents.

Surrogacy is legal in the UK, although only altruistic arrangements are permitted and certain commercial activities are restricted. However, an agreement made between intended parents and a surrogate is not legally enforceable under the Surrogacy Arrangements Act 1985.

A surrogacy agreement can still be useful for recording the parties’ intentions and expectations. However, neither the surrogate nor the intended parents can ask the court simply to enforce its terms.

If a dispute arises, the family court will consider the individual circumstances of the case. Any decision concerning the child will be based on the child’s welfare as the court’s paramount consideration, rather than solely on what was agreed between the parties.

There are two main types of surrogacy:

  • Traditional surrogacy: the surrogate’s own egg is used, meaning she is genetically related to the child.
  • Gestational surrogacy: an embryo is created using an egg from an intended parent or donor. The surrogate carries the pregnancy but has no genetic relationship with the child.

This distinction is important—but genetics alone does not determine legal parenthood.

Under the law of England and Wales, the person who gives birth is treated as the child’s legal mother at birth, even in gestational surrogacy where she has no genetic connection to the child. By contrast, an intended mother whose egg was used may be the child’s genetic mother but will not automatically be recognised as the legal mother.

This raises an important question: if a child has a genetic mother and a different legal mother, who has parental responsibility?

 

Who Has Parental Responsibility at Birth?

At birth, the surrogate is automatically the child’s legal mother and has parental responsibility. Depending on the circumstances, her spouse or civil partner may also be treated as the child’s second legal parent.

The intended parent or parents may therefore not immediately have the legal authority to make important decisions about the child’s medical care, education or travel, even if they have cared for the child since birth.

To transfer legal parenthood and parental responsibility, the intended parent or parents will usually need to apply for a Parental Order.

 

Applying for a Parental Order

A Parental Order transfers legal parenthood from the surrogate and, where applicable, her spouse or civil partner to the intended parent or parents. It also gives the intended parent or parents parental responsibility and permanently brings the surrogate’s legal parenthood to an end.

Certain legal requirements must be satisfied. These generally include:

  • at least one applicant, or the sole applicant, being genetically related to the child;
  • the child living with the applicant or applicants;
  • the application usually being made within six months of the child’s birth;
  • the relevant UK domicile requirements being satisfied; and
  • the surrogate and any other legal parent freely consenting to the order, subject to limited exceptions.

The surrogate’s consent cannot be treated as valid if it is given less than six weeks after the child’s birth. The court’s paramount consideration when deciding whether to make the order is the child’s lifelong welfare.

 

What About International Surrogacy?

International surrogacy arrangements can be particularly complex because the law differs considerably between countries.

Intended parents may be named as the child’s parents on an overseas birth certificate or recognised as legal parents under the law of the country where the child was born. However, this does not necessarily mean that both intended parents will automatically be recognised as the child’s legal parents under UK law.

A UK Parental Order may still be required. Separate questions can also arise concerning:

  • the child’s nationality and immigration status;
  • applications for a British passport or other travel documents;
  • bringing the child back to the UK;
  • recognition of an overseas birth certificate or court order; and
  • payments made to the surrogate or an overseas agency.

The UK Government confirms that overseas recognition of the intended parents does not automatically determine legal parenthood in the UK. Intended parents considering international surrogacy should therefore obtain advice at an early stage, ideally before entering into an arrangement or travelling for the child’s birth.

 

How Can We Help?

Surrogacy arrangements can raise important questions about legal parenthood, parental responsibility and the steps required after a child is born.

Chan Neill Solicitors’ Family Law team can advise intended parents on Parental Order applications and help them understand the legal issues arising from domestic and international surrogacy arrangements.

If you are considering surrogacy, have already welcomed a child through surrogacy or require advice about applying for a Parental Order, please contact our Family Law team to discuss your circumstances.