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Relationship break down during the surrogacy journey?

View profile for Steven Payne
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When a couple decides to opt for surrogacy when trying to conceive this can be a very exciting time. However, years of fertility struggles can take a toll on a couple and if the couple decide to break up before the child is born, this can lead to confusion over who the legal parent to the child actually is.

Who are the legal parents?

In every surrogacy case, the surrogate birth mother will automatically be the legal parent of the child (until a Parental Order is issued by a court to change this). This is the case even if the child has no biological ties to the surrogate carrying the baby (including if donated eggs were used). 

In cases where a sperm donor was used, the second legal parent is chosen at the clinic at the time of the sperm donation.

In order to become a legal parent of a surrogate child you will need to apply for Parental Order.

What is a Parental Order?

A Parental Order is a legal order to signify that the people arranging the surrogacy are going to be the intended parents of the child rather than the surrogate mother. Unfortunately if a couple break up before the Parental Order is cemented, the surrogate mother will still be the legal parent of the unborn child. If she is married, her partner will also become a legal parent to the unborn child. Therefore, when it comes to surrogacy, a Parental Order is vitally important.

When the Parental Order is created, it must be planned that the child will be living with both of the parents applying for the order.

If a couple break up during the surrogacy journey, yet they already have been granted a Parental Order and they are still married during the surrogacy journey, they will both  be seen as the parents, due to Section 54 (2) of the Act  (that the applicants must be husband and wife, civil partners or two persons living in an enduring family relationship).  

In this instance the future parents will still have to arrange visitation arrangements between themselves. If they are unable to do this between them, court action maybe required in order come up with suitable visitation arrangements that suit both parents.

When are parental rights important?

Parental rights are important for issues surrounding parental responsibility – such as key decisions including which school the child should go to. It is also important for inheritance, because if your Will refers to your “child” or “children” then unless they are your legal child they may not receive inheritance. The legal parent will also be financially responsible for the child, and if they do not live with the child they will have to pay child maintenance.


If your child is conceived through surrogacy, it is paramount that you apply for a Parental Order within 6 months of the child being born. It may be  possibility to make an application at a later date at the court’s discretion.

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Gepp & Sons have decades of experiencing in helping people with children law and family law related queries. Contact one of our experts today by calling: 01245  228106 or emailing