Landmark Decision: A Surrogate Mother’s Rights Are Not Erased in English Law
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Isabelle James
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In the world of surrogacy, legal rights and parental responsibilities can be a complicated issue.
Non-profit surrogacy is legal in the UK, but if you use a surrogate, they will be the child’s legal parent until a parental order is made. A parental order takes legal parenthood and parental responsibility away from the surrogate and delivers them to the intended parents.
Many people choose to write the arrangements into a surrogacy agreement, covering important aspects such as how the child will be handed over, any expenses that may be covered, and whether the surrogate mother will retain visitation rights. However, solicitors are barred from drafting surrogacy agreements, and they are not enforceable in a court of law.
While many surrogacy arrangements work amicably, the difficulties can be significant if the arrangement breaks down. A judge may decide to take your private surrogacy agreement into account when making a decision. But since the agreement is not legally binding, you essentially are relying on each party keeping their word.
This issue was graphically illustrated in a recent landmark decision by the UK’s High Court. The child’s intended parents, a same-sex couple, asked the court to sever all legal ties and contact between their surrogate and the child she carried for nine months on the basis they were a ‘motherless family.’ That was not what the mother wanted, nor what the parties had previously agreed.
What Happened?
The child, referred to as ‘Z’ in court proceedings, was born in September 2020 through a surrogate, known as ‘G’.
G used her own egg and was impregnated with sperm from one of the intended parents, a gay couple referred to in the case as ‘X’ and ‘Y’. The couple were married and had been together for years when they decided to have a child through surrogacy.
The men agreed that G would have contact with the child after it was born. However, their relationship with the surrogate broke down during the pregnancy. After taking the child into their family, the couple reneged on their promise and refused to let G have contact with her biological son.
The men then commenced a series of legal actions against G that would cut her from the boy’s life.
The case has been widely reported in the media. According to reports, the couple claimed that seeing his mother would confuse the child, as he was being raised in a ‘motherless family’ within the LGBT community. Having regular contact with her would be homophobic, they said, as it implied that having same-sex parents made the child’s family incomplete.
No Cutting Ties Between Child and Surrogate
In this landmark case, the court had to consider whether a Step-Parent Adoption Order should be made.
If granted, the Step-Parent Adoption Order would have made the non-biological father the child’s legal parent alongside the biological father. The order would have wholly extinguished ties between the child and his mother.
After hearing expert evidence, the court declined to make the Step-Parent Adoption Order—meaning the surrogate mother retains her legal rights and parental responsibility for the child.
There was no argument about where the child should live. The child will continue to live with the married couple under a Child Arrangements Order (agreed by the surrogate mother).
The Judge also made a series of further orders for the non-biological father to have parental responsibility, to define the time that the surrogate mother could spend with her child, and to regulate how the three adults will manage their parental responsibilities and make important decisions about the child’s upbringing.
What Does This Mean For Surrogacy Arrangements?
This is the first case of its kind in the UK.
It highlights just how important it is to enter into a surrogacy arrangement with your eyes wide open, and a full understanding of the impact of the law.
The most important thing to know is that the surrogate is the child’s legal mother unless the intended parents get a parental order from the court. If the surrogate mother wishes to retain her parental rights, or there is any other type of dispute, you will have to go through a full court case and the judge will decide what the arrangements should be in the best interests of the child.
The court may take into account any surrogacy agreement entered into between the parties, but the judge won’t be bound by it and can do whatever it thinks is right for the child.
In this case, one child psychologist who gave expert evidence said that the intended parents were attempting an ‘erasure of mother’ from their family, which did not reflect reality and was not in the boy’s best interest. The court agreed.
What About International Surrogacy?
Outside the UK, the picture is more complex. Surrogacy is illegal in some countries and restricted in others. Some countries recognise and uphold written surrogacy agreements; others do not. In any event, UK law still recognises the surrogate as the legal parent until you have a parental order, even if the baby was born overseas and the surrogate is not named on a foreign birth certificate.
If the surrogate is married, her husband is automatically considered the child’s legal father until a court issues an order to change this. This rule applies whether the surrogacy takes place at home or abroad.
To transfer legal parenthood, you need to apply to the British courts for a parental order and terminate both the surrogate mother’s rights and those of her spouse or civil partner. There may be issues of citizenship to deal with as well.
Because of the complexities, it is crucial to get legal advice before starting on a surrogacy journey. Even if everything seems to be going smoothly, unexpected issues can still arise as this case shows. Forewarned is forearmed. A surrogacy solicitor may not be able to draft a formal surrogacy agreement, but they can get all the ducks in a row to help you prepare for the journey that lies ahead.
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