Children born through surrogacy who lack a court’s parental order could become ‘stateless and parentless’ with birth mother remaining legal parent – warns High Court judge.

Mrs Justice Theis has warned when speaking at a conference ‘Surrogacy Symposium’ in London, that failure by parents to obtain parental orders in respect of the majority of children born through surrogacy agreements has created a ‘ticking legal timebomb’.

A parental order transfers parental responsibility for the child to the parents. Without this court-sanctioned parental order children may end up stateless and parentless. It is estimated that as many as 2,000 children a year are born to surrogate mothers (mainly overseas) before being given to British parents. However, last year according to CAFCASS (Children and Family Court Advisory and Support Service) statistics, only 241 applications were made for parental orders in the UK.

Section 45 of the Human Fertilisation and Embryology Act 2008 sets out the conditions with which those applying for a parental order must comply. Click here for a summary of the conditions:

Mrs Justice Theis went on to emphasise the issues that may arise later on if a parental order is not made such as deaths, inheritance issues, parents splitting up or even renewing passports. Unless the child’s status is registered, it may not inherit from its new parents and would still have a claim on the estate of the birth mother. A parental order extinguishes the rights and responsibilities of the surrogate mother, who, in the absence of a parental order, would be recognised in law as the true parent.

In a parliamentary debate earlier this year there was a call for legislation to be updated in order to help intended parents and surrogates and those considering written agreements within an international legal framework. The health minister has said she will consider requests to change the law.