Judge says 72-year-old Scottish man and his late wife are legal parents of boy born in the USA

A Scottish judge has granted permission for a 72-year old man and his late wife to become the legal parents of a three-year-old boy who was born in the USA under a surrogacy arrangement.

Sheriff Wendy Sheehan admitted she would not have allowed the youngster to be adopted by the man, whose wife died unexpectedly after the child was born, as a result of “concerns” relating to his older age.

However, she added that the welfare of the boy - known as child “A” to protect his identity - would also be “gravely compromised” if the court refused to make an order.

This is because he has no UK birth certificate mirroring the terms of the birth certificate granted in the USA, he would potentially not be allowed to remain in the UK, and have no right to apply for UK citizenship or for a UK passport.

“A is well cared for and thriving in the care of the first petitioner. Overall, am satisfied that the orders sought will safeguard and promote his welfare and that it is better for him that I make a parental order than that none is made,” the ruling said.

The child A was born in Oklahoma at the height of the Covid-19 pandemic, on August 21, 2020.

By the time he was born, the wife of the Scottish couple had suffered a severe stroke and was resident in a nursing home.

Due to Covid-19 travel restrictions, the husband was not present at the child’s birth and was unable to travel to the USA until July 2021.

During the intervening period the boy was cared for by a professional nanny, with no contact from his birth mother.

The husband travelled to the USA in July 2021, obtained a US passport for the child and brought him back to Scotland on August 19, 2021.

He intended to make a joint application for a parental order with his wife, reflecting “the circumstances in which the child’s birth was commissioned”.

The ruling said the husband wished for A to be treated in law as the child of both him and his wife, and for the parental order to reflect the pre-birth order of the Superior Court of the State of California and the birth certificate issued in Oklahoma.

However, the wife died in December last year, leaving a question over the parental order.

If the application had been amended, with the father seeking an order as a single parent, A’s birth certificate would differ from the birth certificate issued in the USA, which may “present difficulties for A in later life”.

The boy would also have no legal rights claim for the late wife’s estate.

“The granting of a parental order in favour of both petitioners (husband and wife) would provide him with emotional, social, practical and financial benefits,” the ruling said.

“It is in his best interests for the order to be granted in favour of both petitioners. It is better for him that the order is granted than that no such order is granted.

“There are no alternative legal remedies which would offer A the same transformative effect as the parental order sought.”

The judgement said that if the wife had not died, A would have remained in the care of both of the petitioners.

It added: “The child A has a happy and stable home with the first petitioner. He is healthy and well cared for.

“The first petitioner is 72 years of age. He is outwith the normal accepted range of parenthood but is active and energetic. He has secured a nursery place for A and involves him in various age-appropriate activities with his peer group.”

A friend of his late wife is the child’s 73-year-old godmother who cares for him at least once a week.

“Whilst A’s current needs are met, the age of the first petitioner gives rise to concern regarding A’s welfare throughout his childhood (and beyond),” the judgement said.

“The first petitioner (husband) is researching boarding schools for A’s secondary education. The professional nanny who cared for A during the first year of his life (and her family) have maintained a close relationship with A.

“She has agreed to act as A’s guardian should the first petitioner die before A reaches adulthood. She lives in the USA.”

In issuing her verdict, Sheriff Sheehan at Edinburgh Sheriff Court said “surrogacy remains an ethically controversial area of public policy and different countries take different approaches to it”.

She also said in considering the matter she had “pause to reflect that an adoption order would not have been granted by the court in circumstances where the first petitioner, at the age of 72, is outwith the normally accepted range of parenthood and where the second petitioner is deceased at the point at which the order is sought”.

However, the sheriff added: “The fact that the first petitioner is researching the availability of a suitable boarding school place for A for his secondary education and has considered appointing a guardian in the event of his death during A’s childhood demonstrates that he understands these issues.

“These concerns must be balanced with the fact that A’s welfare would be gravely compromised by the court’s refusal to make an order.”

She continued: “His gestational carrier has had no contact with him since birth. He is now aged 3 years and 10 months.

“The lack of a parental order would result in a failure to recognise his genetic relationship with the first petitioner and would deny him the social and emotional benefits of recognition of his relationship with his parents with a legality that matched his day to day reality.”