Disputes involving the surrogate mother wanting to keep the baby are rarer than many people expect, although problems have arisen occasionally in UK. Surrogacy disputes in practice more commonly concern disputes with social services or healthcare providers based on the intended parents’ lack of legal status.
Disputes between surrogates and intended parents
Legal problems have occasionally arisen in the UK where the surrogate mother has not handed over the baby after the birth. This is much rarer than many people think, with over 900 parental orders successfully granted with everyone’s consent, compared with only two reported cases involving surrogacy disputes.
If there is a dispute concerning handover, the surrogate mother is treated as the legal mother with parental responsibility (whether or not she is the biological mother), and the intended parents cannot ‘enforce’ any surrogacy agreement between them as a matter of contract, nor apply for a parental order without her consent.
However, the intended parents can apply to the family court for a residence order to require care to be transferred to them. If neither of the intended parents is a legal parent (find out more) they will need the court’s permission to apply. The court will then decide who the child should live with – the surrogate or the intended parents – taking account of the child’s best interests.
Every case is fact specific, something demonstrated by the fact that of the two UK reported cases yet to deal with these kinds of custody disputes, one has favoured the intended parents (In the Matter of N (a child) 2007) and other has favoured the surrogate (CW v NT 2011).
Disputes with social services
Social services are not required to become involved when a baby is handed over to intended parents following a surrogacy arrangement as long as the intended parents propose to apply for a parental order within six months of the birth. However, issues sometimes arise nonetheless, for example where referrals are made to social services by maternity hospitals. Such situations can usually be resolved through clarification of the law and confirmation that the parents have applied for a parental order.
If you have not applied for a parental order to become your child’s legal parents within six months of the birth, the legal exemption which protects you from social services’ involvement no longer applies. You may be in a private fostering arrangement (i.e. caring for a child with whom you are not legally related) in which case social services have a legal obligation to oversee your care on a regular basis. In addition, one or both of you will not have parental responsibility for your child, so your ability to make decisions in respect of your child’s care could be challenged. This is the case even if your child was born through a surrogacy abroad and you have a foreign birth certificate naming you as the parents.
Where the status of the intended parents is not properly resolved following a surrogacy arrangement, the legal position can become very complicated, and social services may seek involvement or may commence legal proceedings to force you to regularise the position.
Medical care issues
As intended parents, you may not have parental responsibility giving you legal authority to make decisions about your child’s care. In the early months the most common difficulties which arise in practice concern medical care.
Most parents manage routine medical care (such as immunisations) by having open dialogue with supportive GPs and where necessary having their surrogate give written consent. However, occasionally more serious difficulties arise, for example where a child needs hospitalisation and ongoing medical treatment.
In these situations the intended parents may experience difficulties dealing with the hospital. Various legal solutions are available on an urgent basis to give interim status, including applying to the family court for an emergency residence order before the parental order is granted.
How we can help
We have the UK’s leading expertise on surrogacy law and understand clearly how the law governs the status of parents, surrogate and UK authorities. We can help with:
Speaking to doctors and social workers on your behalf to secure pragmatic solutions concerning your child’s care,
Representing you in court proceedings for residence orders
Representing you in contested proceedings involving social services.
Find out more about our surrogacy law services.
Your surrogate will end up keeping the baby, won't she? - Article by Natalie for the I N UK magazine, Winter 2011