A judge has been unable to determine the marital status of a surrogate mother from the Republic of Georgia.
In Re D (A Child), there was not enough evidence for Mr Justice Moylan to decide if the surrogate mother was married, divorced, or single at the time of treatment.
The question arose when parents looking to adopt a child, only identified as ‘D’ in the judgment, were given contradictory information by the surrogacy clinic.
If it turned out the surrogate was married, then under Section 35 of the Human Fertilisation and Embryology Act (HFEA) 2008, her husband would be D’s legal father.
There had been no contract between the potential mother and the surrogacy clinic until after D’s birth. The contract made no mention of marital status, but the mother claimed she was led to believe the surrogate was single.
In a letter to the British Embassy in Georgia, the director of the clinic said the surrogate was divorced, but in an email to the mother’s solicitor, said she was married.
Efforts were made to locate the surrogate in Georgia in order to confirm her status during the relevant time period. Despite the use of an international detective agency, the attempts were unsuccessful.
Without the surrogate, the judge had to base his decision on “incomplete” evidence which was “not consistent”.
Mr Justice Moylan was unable to make a ruling on the marital status question. He expressed “considerable doubt” about the information provided by the clinic regarding the surrogate.
Despite this setback, he was able make a ruling regarding what would happen to D.
The mother had initially applied for a special guardianship order, which would allow her to adopt D as his ‘special guardian’. The father, on the other hand, applied for a shared residence order, which means D would share his time between both parents.
D’s appointed guardian supported the idea of a shared residence order and was able to get both parents to agree.
The judge concluded by making D a ward of court, meaning that any decision made about his upbringing would require the approval of the court.
He also granted the application for a shared residence order, believing it was in the child’s best interests.
apital of Georgia, by Johannes Zielcke via Flickr