Does my surrogate need to consent to the parental order?

Do I need my surrogate’s consent for a parental order?

In short, yes. If the surrogate says that they do not consent to the making of a parental order, then the court cannot and will not make the parental order.

If the surrogate is married or in a civil partnership, the consent of their spouse or civil partner will also be needed.

The non-consent of the surrogate is an absolute barrier that the court cannot overcome. Consent is therefore treated differently to other requirements for a parental order, where over time a more generous and flexible approach has been developed, if the parental order would be in the best interests of the child.

The consent must be freely given, with a full understanding of what is involved and unconditional. As an example, the consent is not valid if it is contingent on the court also making a child arrangements order for future contact between the surrogate and the child.

The only exceptions are if the person giving consent:

• cannot be found; or
• is incapable of giving agreement.

Parental order applications relying on these exceptions are significantly more complicated, taking additional time and cost to resolve. Particular attention is needed in international surrogacy arrangements where the intended parents and surrogate may never meet and all contact takes place via an agency. There have now been numerous cases where communication between the intended parents and the agency and / or the agency and the surrogate has broken down and it has not been possible to trace the surrogate to get their consent.

When do I need to ask my surrogate for their consent?

Consent must be obtained at least six weeks after the birth of the child. If consent is given less than six weeks after birth, it will not be valid.

Consent cannot be given before the child’s birth. However, the conversation about consent to the parental order should start from the beginning of the surrogacy journey, and before conception. It is sensible to discuss consent as part of counselling, or a written agreement about the arrangements, to make sure everyone’s understanding and expectations align.

How does my surrogate provide their consent?

The consent is given on form A101a within the parental order proceedings.

What help can Blake Morgan provide

If you have any questions about the need for consent or the parental order application process in general, then do not hesitate to get in touch with the Family Team at Blake Morgan.