When a child is born through surrogacy in England and Wales, the surrogate is the child's legal mother at birth. If she is married or in a civil partnership, her spouse is normally the other legal parent. That is true however the embryo was made and whatever any agreement says. The intended parents have to get legal parenthood transferred to them by a court, and there are two orders that do it: a Parental Order and an adoption order. A third order — a child arrangements order — gets mentioned in the same breath and does something much smaller.
This page sets out which order applies to which situation, what each actually gives you, and where people go wrong choosing between them. Guidance only, not legal advice.
The short version
| Parental Order | Adoption order | Child arrangements order | |
|---|---|---|---|
| Makes you the legal parent | Yes | Yes | No |
| Ends the surrogate's parenthood | Yes | Yes | No |
| Genetic link required | Yes | No | No |
| Deadline to apply | 6 months | None | None |
| Agency involvement | No | Usually | No |
| Governing Act | HFEA 2008 | ACA 2002 | Children Act 1989 |
Parliament designed the Parental Order specifically for surrogacy. If you qualify for one, it is the route the courts expect you to use. Adoption is what remains when you cannot qualify — almost always because neither of you is genetically related to the child. A child arrangements order is not an alternative to either; it gives you parental responsibility for day-to-day decisions and leaves legal parenthood exactly where it was.
The Parental Order
A Parental Order is made under section 54 or 54A of the Human Fertilisation and Embryology Act 2008. Once made, the child is treated in law as the child of the applicants and of nobody else — the surrogate's parenthood, and her spouse's, ends. The order is entered in the Parental Order Register and a new birth certificate is issued naming you as the parents.
The conditions are specific and every one of them must be met:
- At least one applicant must be the child's genetic parent — for a single applicant, that person must be. This is the condition that decides Parental Order versus adoption for most people.
- The application must be issued within six months of the birth. Courts have allowed late applications where the child's welfare demanded it, but the statute says six months and you should treat it as a hard limit.
- The child's home must be with you when you apply and when the order is made.
- At least one of you must be domiciled in the UK, Channel Islands or Isle of Man.
- The surrogate must consent freely and unconditionally, at least six weeks after the birth, on Form A101A — and so, normally, must her spouse.
- No more than reasonable expenses may have been paid unless the court authorises them. In practice the court authorises most sums retrospectively provided they were disclosed.
There is no adoption agency, no local authority assessment and no approval panel. The court appoints a Cafcass parental order reporter who visits and reports, and the whole process usually completes within a few months of issue. It is designed to be the lighter route, and it is.
Adoption
An adoption order under the Adoption and Children Act 2002 has the same end result: the child becomes legally yours and the birth parents' status ends. The child is entered in the Adopted Children Register and a certificate is issued in the same way. What differs is the route to get there, and it is substantially heavier.
No genetic link is needed. That is the reason surrogacy families use it. If the embryo was created from a donor egg and donor sperm, or the genetic parent has died or cannot apply, adoption is the only order that will make you the legal parents.
Agency involvement is the norm. Section 92 of the 2002 Act makes it a criminal offence for anyone other than an adoption agency to arrange an adoption or to place a child for adoption, unless the child is being placed with a parent, a relative or a parent's partner. Where neither intended parent is a legal parent of the child, a surrogate handing the baby to you with a view to adoption is on the wrong side of that line unless the local authority is involved. The courts have made orders in those cases, but it is not a step to take without advice and without the local authority knowing. If you have to go this way, contact the local authority's adoption service before the birth, not after.
Assessment and time. A non-agency applicant must give the local authority written notice of intention to adopt at least three months before applying, the child must have lived with you for the qualifying period, and a social worker will assess you and report to the court. Expect the process to take considerably longer than a Parental Order.
Payments. Section 95 of the 2002 Act prohibits payments in connection with adoption. The Parental Order regime expects and authorises reasonable expenses; the adoption regime treats payments as a problem. A surrogacy arrangement with normal expenses can therefore be straightforward in a Parental Order application and an issue in an adoption application. Disclose everything either way.
Children born abroad. If the child was born outside the UK and you bring them here intending to adopt, section 83 of the 2002 Act and the Adoptions with a Foreign Element Regulations 2005 apply, and non-compliance is an offence. This is specialist territory. Get advice before travel, not at the airport.
Birth mother's consent follows the same rule as for a Parental Order: it is ineffective if given less than six weeks after the birth (section 52(3)). Unlike a Parental Order, the court can dispense with consent where the child's welfare requires it — but you should not plan on that.
Child arrangements orders and parental responsibility
A child arrangements order under section 8 of the Children Act 1989 saying the child lives with you gives you parental responsibility for as long as the order lasts. Parental responsibility is the authority to make decisions — schooling, medical treatment, travel. It is useful, and some intended parents obtain one as an interim measure.
It does not make you the child's legal parent. The surrogate remains the legal mother. The child does not acquire British citizenship through you, does not inherit from you on intestacy as your child, and the order ends when the child turns 18. If your child's birth certificate names someone else as a parent, a child arrangements order does not change it.
The same applies to parental responsibility agreements, to special guardianship and to being named on a foreign birth certificate: none of them transfers legal parenthood in England and Wales. A foreign court order or a foreign certificate naming you as parents is not recognised here as making you the legal parents. You still need a Parental Order.
Choosing between them
Work through it in this order.
- Is at least one of you the genetic parent? If yes, a Parental Order is the route, and you should be preparing the C51 with the six-month clock in mind. If no, you are looking at adoption, and you should involve the local authority now.
- Are you a single applicant? Then you must be the genetic parent. A partner's or donor's link does not count.
- Is the six-month deadline already gone? Do not assume adoption is the answer. The courts have made Parental Orders years late in the child's interests, and an adoption application after a missed deadline can raise the section 92 and section 95 problems above. Take advice on a late Parental Order application first.
- Does the surrogate refuse consent? A Parental Order cannot be made without it. Adoption can proceed without consent only where the court dispenses with it, which is rare. Either way this is a contested case and needs a solicitor.
One route is designed for you and takes months. The other is designed for a different situation and can take much longer. If you qualify for the Parental Order, use it.
The free two-minute check tells you whether your case looks straightforward — including whether the genetic link condition is met. PO Navigator then tracks your deadline and builds the bundle for a Parental Order application.
See also: single applicants and s.54A · reasonable expenses · after the order — the new birth certificate · how to apply · all guides
Sources: HFEA 2008 s.54 and s.54A; Adoption and Children Act 2002, in particular ss.42, 44, 52, 83, 92 and 95; Children Act 1989 s.8 and s.12; Adoptions with a Foreign Element Regulations 2005. Positions stated here are as at September 2026. General information about the law of England and Wales, not legal advice.