For a parental order, the law treats a same-sex couple exactly as it treats an opposite-sex one. The conditions in section 54 of the Human Fertilisation and Embryology Act 2008 are written without reference to sex, and the forms, the court, the fee and the six-month window are all the same. What is different is practical: proving which of you is the genetic parent, the clinic and donor paperwork, foreign birth certificates that may name only one of you, and how overseas countries treat two fathers or two mothers.
This page covers those differences. For the process itself, how to apply for a parental order applies to you exactly as written. Guidance only, not legal advice.
The conditions, as they apply to you
Every couple applying under section 54 must meet the same conditions. The ones worth reading closely as a same-sex couple:
- Your relationship. You must be married, civil partners of each other, or "two persons who are living as partners in an enduring family relationship". All three apply to same-sex couples. A same-sex marriage counts as a marriage for this purpose — the Marriage (Same Sex Couples) Act 2013 says references to a married couple in earlier legislation include a married same-sex couple — and section 54's civil partnership and enduring-relationship routes have always been available to same-sex couples.
- The genetic link. The gametes of at least one of you must have been used to create the embryo. It does not matter which of you, and the other partner needs no genetic connection at all.
- Domicile. At least one of you must be domiciled in the UK, the Channel Islands or the Isle of Man — domicile, not just residence.
- The child's home must be with you both, when you apply and when the order is made, and you must both be 18 or over.
- Consent. The surrogate — and anyone else who is a legal parent of the child, usually her spouse or civil partner if they consented to the treatment — must agree freely and unconditionally, and her agreement does not count if given less than six weeks after the birth.
- Payments. Nothing beyond reasonably incurred expenses may have been paid, unless the court authorises it.
- Timing. You must apply within six months of the birth.
The full checklist, with what evidence satisfies each, is in parental order eligibility.
Two women: when you need a parental order and when you don't
If a surrogate carries the pregnancy — even using one partner's egg — you need a parental order. In UK law the woman who carries a child is its legal mother, so the partner whose egg was used is not the legal mother at birth until the order is made.
If one of you carries the pregnancy, there is no surrogacy and no parental order. The partner who gives birth is the legal mother, and the other partner becomes a legal parent through different rules — automatically if you are married or civil partners at the time of treatment, or by signing the right consent forms at a UK licensed clinic before treatment if you are not. That route is outside the scope of this page.
What's different in practice
Proving which of you is the genetic parent
For an opposite-sex couple the genetic link is often assumed until someone asks. For two men it cannot be: one of you is the genetic father and the court will want evidence of which. For two women using a surrogate, the same applies to whose egg was used.
That evidence usually comes from the clinic — a letter or record confirming whose gametes were used — and, where the clinic's records are unclear or the child was conceived abroad, a DNA test. Ask the clinic for the confirmation while you are still in contact with them; it is much harder to obtain years later. If you used a UK clinic, note that the government's own guidance says UK clinics can use only one partner's sperm sample per treatment cycle, so the records should identify whose was used.
If a mistake was made — the wrong sample, or a donor used who should not have been — see wrong donor or no genetic link. That is legally serious and needs specialist advice.
Donor paperwork
Most same-sex couples use a donor for the gametes neither of you provides — an egg donor for two men, a sperm donor for two women. The donor is not a parent and is not a party to the parental order application, but the court will want to understand how the embryo was created. Keep the clinic's donor documentation together with the genetic-link evidence; it belongs in the same part of your witness statement.
Foreign birth certificates
A child born abroad will usually have a local birth certificate first. Depending on the country, that certificate may name:
- the surrogate as mother, and the genetic father;
- both intended parents, following a local court order;
- or only one of you.
None of these decides the UK position. In UK law the surrogate is the legal mother at birth wherever the child is born, and the parental order is what makes you both the child's legal parents here. A foreign certificate naming you both is helpful evidence, not a substitute. Whatever the certificate says, get the full version and a certified translation for the court bundle.
Overseas countries
Countries differ widely on whether same-sex couples can enter surrogacy arrangements at all, and their rules change. We do not summarise them here because a summary goes out of date faster than a guide is reviewed. Check the current rules for your country before you commit — our country guides note whether each country's framework accepts same-sex couples — and take local legal advice.
After the order
Once the order is made, the court sends a copy to the General Register Office, which adds a new entry to the Parental Order Register. The GRO then writes to you, and you can order new birth certificates, short and full, online or by post. The new certificate names you both as the child's parents. For a UK birth, the original entry is marked "Re-registered by the Registrar General" and closed; the process is the same wherever the child was born. More on this in the parental order birth certificate.
If your child was born abroad, citizenship and the passport are a separate question with their own rules — see British citizenship and passports after surrogacy.
Support and community
- Surrogacy UK — a not-for-profit surrogacy organisation with guides for intended parents and surrogates.
- My Surrogacy Journey — a UK not-for-profit, founded by two dads after their own surrogacy journey.
- The Cafcass parental order reporter — not a support service, but the person who will visit you during the application; Cafcass publishes what they do and what to expect.
- The government's surrogacy pathway — the Department of Health and Social Care's guide for intended parents, which explicitly covers same-sex couples.
COTS, which older guidance still lists among the main UK surrogacy organisations, closed in September 2025.
Frequently asked questions
Do both of us get named on the birth certificate? Yes, after the parental order. The court notifies the General Register Office, which re-registers the birth in the Parental Order Register, and you can then order a new birth certificate naming you both as the child's parents. A foreign birth certificate issued at birth may name only one of you; the parental order is what changes the position in UK law.
Does it matter which of us is the genetic father? Not for the order. The law requires only that the gametes of at least one of you were used, and either of you can be that parent. It matters for the evidence — you will need to show which of you it is — and, for a child born abroad, it can matter for British citizenship, which is a separate question.
Can we apply if we're not married? Yes. Unmarried couples, same-sex or opposite-sex, can apply if they are living as partners in an enduring family relationship. You will need to evidence the relationship, for example that you live together and have shared your lives over time.
Is the process different for two dads than for two mums? The law and the application are identical. The main practical difference is that a male couple always needs a surrogate and either a donor egg or the surrogate's own egg, so the genetic-link evidence always concerns whose sperm was used, whereas a female couple may use one partner's egg — and a female couple where one partner carries the pregnancy does not need a parental order at all.
PO Navigator guides couples of any sex through C51, C52 and A101A, builds the witness statement and the bundle's contents with you, and tracks the six-month deadline. Check whether your case is straightforward — free, two minutes, or see every free and low-cost source of help. Applying alone? See single applicants.
Sources
- HFEA 2008 s.54, s.33, s.42, s.43
- Marriage (Same Sex Couples) Act 2013, s.11 and Schedule 3
- The surrogacy pathway, Department of Health and Social Care
- Parental Orders Regulations 2018
- Cafcass — parental orders (surrogacy)
- Surrogacy UK · My Surrogacy Journey · COTS closure notice
Checked against these sources 1 November 2026. General information about the law of England and Wales, not legal advice.