FAQ

In a surrogacy case, are the commissioning parents the legal parents at birth?  No they are not under the current law. The legal mother is the surrogate and any spouse she may have is likely to be the other legal parent. This is why it is crucial for commissioning parents to obtain a Parental Order as they do not have the status of legal parenthood until a Parental Order is made under the Human Fertilisation and Embryology Act 2008. This can have implications for the immigration status and nationality of the child if born overseas.

How many 'legal' parents can a child have? The maximum number of 'legal' parents that any child can have is two. So if a lesbian couple conceive a child with a man who is going to be involved with the child, only two of the three adults will have the status of 'legal' parent. The birth mother will always be the legal parent even if the egg has been donated from another woman. Misunderstandings as to the legal status of adults in this situation has led to a lot of the case law in this context as disputes often arise when individuals realise that their role is not what they thought or, more frequently, had assumed it would be.

Do all legal parents have parental responsibility (PR) for their children automatically? Not necessarily. An unmarried father who conceived a child through natural insemination will be a legal parent but will not have PR for the child unless named on the birth certificate or until PR is acquired through a court order or a formal parental responsibility agreement with the mother.

Is commercial surrogacy legal in the UK? No, it is a criminal offence to initiate negotiations with a view to making a surrogacy arrangement or to offer or agree to negotiate the making of a surrogacy agreement for profit. However, there are organisations that do so for altruistic reasons on a not for profit basis that are legal

Are surrogacy arrangements enforceable? No. It is not possible to force a surrogate to hand over a child if she changes her mind.

What is the difference between a barrister and a solicitor? There are two branches of the legal profession, solicitors/legal executives and barristers. Using the medical analogy, a GP is equivalent to a solicitor/legal executive who will often be the first port of call for clients in an office, and a hospital consultant is the equivalent of a barrister. If the case is going to court a specialist advocate is normally instructed to deal with court hearings. This could be a solicitor but more commonly, this work is undertaken by a barrister. I first qualified as a solicitor in 1989 and transferred to the Bar in 2011 so I am dual qualified but now practice as a barrister.

Are there any alternatives to court proceedings to resolve parenting disputes? Yes. If you make an application to the Family Court, it is likely that you will have to wait in excess of a year for a Court to impose a decision on parents who cannot agree between themselves. Effective alternatives include 'mediation' where parents are assisted to reach agreement, 'early neutral evaluation' where an independent lawyer gives an opinion to parties on the strengths and weaknesses of a case, or 'arbitration' where an arbitrator can make a determination on an issue quickly, confidentially and at a time that suits the parties. Alternatives to litigation are often quicker, cheaper and more effective because delay can only make the situation worse. Find out more here

What is arbitration? Arbitration is a legal process that is an alternative to going to court. I am an arbitrator in children's disputes which means that I can make a decision (called a determination), in the same way as a judge in court, that the parties agree to be bound by. Arbitrations can be arranged by agreement at short notice to make urgent decisions on specific disputes such as choice of school, overseas travel or relocation to a different area. It is much quicker than using the Family Court, is completely private and confidential and can be arranged at a time that is convenient to the parties