Surrogacy case’s uncharted waters show importance of specialist legal advice - Lynsey Brown
The couple, known as Mr and Mrs X, entered into a surrogacy arrangement in the US in 1998. Their surrogate, known as Mrs Z, became pregnant with an embryo created using gametes from Mr and Mrs X. Their son, known as Y, was born in California. Orders were made under US law providing that Y was legally the child of Mr and Mrs X, the intended parents. Mr and Mrs X brought Y back to the UK, assuming the legal position in the UK was the same.
To Mr and Mrs X’s “major shock”, Mrs Z contacted them in September 2021 alerting them to their need to obtain a Parental Order in the UK if they were to be treated as Y’s parents here, as well as in the US. Mrs Z and her husband remained, under UK law, Y’s legal parents. She had become aware of this by entering into a subsequent surrogacy arrangement with similar circumstances. By this time, Y was in his 20s.
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Hide AdMr and Mrs X raised an application for a Parental Order in court, despite the fact that their son was now an adult, and although their application came vastly beyond the statutory six-month time period from birth for such applications. Neither Y, nor Mrs Z and her husband, opposed the application. All parties concerned wanted the Order to be granted, to reflect what they always thought was the case and the reality as it had stood from Y’s birth.
In her judgment, Mrs Justice Theis underlined the “enormous significance” of the application for everyone involved. In the UK, where a child is born via surrogacy, the surrogate will be treated in law as the legal mother of the child, and, if she is married or in a civil partnership, and it cannot be shown that her spouse or partner did not consent to her medical treatment to become pregnant, her spouse or partner will be considered the father or second legal parent, even where there is no genetic link between those individuals and the child.
In every case, to transfer legal parentage from the surrogate, and her spouse or partner if applicable, to the intended parent or parents, the intended parent or parents have to go through a legal process at court. That involves them applying to the court for a Parental Order.
This remains the case where international surrogacy occurs, even where the child is legally considered the child of the intended parents in the country where he or she was born and where the surrogacy arrangement took place. Mr and Mrs X’s failure to apply and obtain a Parental Order upon their return to the UK meant Y remained, under UK law, the child of Mrs Z and her husband. This in turn meant that Y had, for instance, no automatic legal right to inherit from Mr and Mrs X, not being recognised here as their child and heir.
Mrs Justice Theis granted the Parental Order, commenting that “the fact that Y is now an adult does not…preclude the court from making a [parental] order… [T]he [Human Fertilisation and Embryology Act 2008 does not limit such applications only being made in relation to children”. She also highlighted that the recent consultation by the Law Commission (jointly with the Scottish Law Commission) raised no objection to parental orders being made in relation to adults, saying this “perhaps reflects that as a matter of fact everyone remains the child of someone even when they become adults”. The judge also held that the circumstances justified the significant extension of the usual six-month timescale for making the application.
The family indicated they hoped their case, which had entered uncharted waters, would send a message to others who might be in a similar situation. The ruling may raise awareness of the importance of taking legal advice from a specialist family law solicitor in relation to any surrogacy arrangement which has been, or may be entered into, where here or in another jurisdiction, and the need to ensure that legal parentage is resolved in the UK courts to ensure the security of their family unit.
Lynsey Brown is an Associate, Harper Macleod