High Court deals with legal mess after parents through UK surrogacy separate

small child on swing_bA three year old boy born through surrogacy has been left in legal limbo after his parents separated without getting a parental order.

The boy had been born through a UK surrogacy arrangement involving the intended mother’s friend.  She offered to act as a surrogate for them and conceived by artificial insemination at home using the intended father’s sperm.  The baby was born and handed over to the intended parents, and (in accordance with the law) the surrogate and the intended father were named as the parents on the birth certificate.  However, the parents separated shortly after the birth (and later divorced) and missed the deadline to apply for a parental order which would make them legal parents and extinguish their surrogate’s responsibilities.

Like many other divorced couples, they became embroiled in court proceedings relating to care arrangements for their son. But Mrs Justice King, hearing the case in the High Court, had to consider the implications of the unresolved surrogacy context.  The problem was that the boy’s legal parents were the surrogate and the father, while the mother (who had cared for her son since birth) was not a parent and had no parental responsibility.

Ultimately the judge endorsed a solution the adults proposed; the boy was made a ward of the court, the surrogate promised not to exercise her parental responsibility, and the parents were given a shared residence order (enabling the mother to have decision-making authority).  However, parenthood was not reassigned.  This means that the surrogate will permanently remain the child’s legal mother, and the boy will permanently remain a ward of the court.

The decision seems inadequate, given that the welfare of the child is the court’s paramount consideration.  How is it in this child’s best interests to have the wrong legal mother and to remain a ward of the court?  However, the court had no choice (bar challenging the law on human rights grounds, which perhaps should have been considered).  The only legal mechanisms which allow a full transfer of parentage are parental orders and adoption orders.  Under current legislation, the court had no power to make either order, because the absolute six month deadline for applying for a parental order had expired and because the parents were neither married nor living together.

Mrs Justice King has said that the case is a cautionary tale for parents who enter into informal surrogacy arrangements which do not involve UK licensed fertility clinics.  She asks for protocols to be put in place at hospitals to ensure that parents are better protected and given the right information.  But the problem here goes much wider, demonstrating why we need better law for UK surrogacy which is less restrictive and more focused on protecting the child’s welfare.  For further comment and reflection on how we think UK surrogacy law could be improved, see the Brilliant Beginnings blog.

One final lesson to learn from this case:  take care when choosing your surrogacy lawyer.   The judge criticised the Birmingham solicitors involved in this case who had drawn up a surrogacy contract for the intended parents, presumably unaware that doing so was a criminal offence.  Increasing numbers of family lawyers are offering surrogacy law services but, as this case shows, it cannot be assumed that all surrogacy solicitors are equal.

Find out more about surrogacy law in the UK from our website, and about our surrogacy law services.

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