Usually, one of the first things parents think of if they are considering separating is how arrangements for their children will be managed. If your children were born through surrogacy, there may be additional emotional or legal worries. You may be thinking: What legal rights do I have if we split up? Am I in a worse position than my partner if I am not a biological parent? What is my legal position as a same-sex parent?
Under UK law, parents through surrogacy are not immediately recognised as legal parents of their children (whether their children are born in the UK or via an overseas surrogacy arrangement). They become legal parents when the UK family court makes a parental order, which might be some months after the birth. This means that the law is different depending on when your relationship breaks down.
You will be expected to agree care arrangements for your children – who they should live with and what contact they should have with the other parent if you don’t live together. If you can’t agree, then you should consider mediation or get legal advice to try and help you. Failing that, either of you can apply to the family court to decide what is in your child’s best interests, and the court will make a ‘child arrangements order’ deciding arrangements for your children. You will also both be financially responsible for your children.
The surrogacy background and who is a biological parent should be irrelevant (although in reality we know that it is something which may need to be explained to the court, and can be used as a weapon where a separation is acrimonious, so care and specialist help may be needed). Same-sex parents should also be treated in exactly the same way as different-sex parents. The right outcome for your family will depend on how things have been managed to date, and whether your children have a primary carer or whether you share care more equally.
This makes things much more complicated. Depending on your situation, the court may allow you to seek a parental order before you formally divorce or separate, even if you have missed the usual six month deadline for applying. Otherwise, one or both of you will not legally be a parent of your children.
The law on this is still evolving, but without a parental order there will be complex issues around your status, financial responsibility and right to make court applications in the context of a separation. One of you may be in a better position legally than the other, even if that makes no logical sense, and your surrogate may need to be involved too (even if she is based overseas). The law is also different depending on whether you are going through a formal divorce process or are a cohabiting couple. That said, the court is always keen to protect children and will do its best to apply child-focused welfare principles which protect a child’s right to maintain a relationship with both parents if that relationship is already established. In cases where the separation takes place during the surrogacy process and one or both parents has not yet had the chance to establish a relationship with their child, things can be even more difficult.