The parental status of a baby boy born to a surrogate mother must remain unresolved because his biological mother has separated from his father, the High Court has ruled.
The baby, ‘A’, was born in the UK earlier this year via a ‘gestational surrogacy arrangement’ –i.e. an agreement in which an embryo is created from the gametes of one or both members of a couple and then implanted into a surrogate mother. The then carries the resulting baby to term.
The couple in question had been together since 2011. They wanted to have children but ran into the fertility problems, with the woman unable to conceive. A round of IVF proved unsuccessful so they then considered surrogacy. Eventually a friend agreed to become a surrogate mother to the couple.
An embryo was duly created from the sperm and ova of the couple in a fertility clinic before the surrogate pregnancy began. Unfortunately, as the nine months passed, the relationship between the couple broke down and they separated before A’s birth.
When A arrived, the surrogate mother handed him over to the biological mother, saying she had no wish to be involved. Under current English law, however, as the birth mother she would remain the baby’s legal mother until that status was transferred via a court-issued ‘parental order’.
Following the separation A’s father ceased all contact and had not even seen his son at the time of the hearing. Mr Justice Keehan noted plaintively that despite this behaviour:
“He is, of course, the only biological and legal parent that A has, as matters stand.”
The problem faced by the biological mother was that, as a now single person, she was no longer eligible to apply for a parental order, under the Human Fertilisation and Embryology Act 2008. This left A in limbo, with his legal parents remaining the surrogate birth mother and the absent biological father.
Mr Justice Keehan referred to a recent ruling by Sir James Munby, the President of the Family Division of the High Court, in which he declared that the 2008 Act discriminates against single people and was therefore incompatible with the European Convention on Human Rights.
The government is reported to be considering its options. But until such time as the law is actually changed, explained Mr Justice Keehan, no parental order could be issued for the biological mother in this case. Instead an existing wardship arrangement would continue, and she would be given formal care of the baby.
Read M v F & SM in full here.
Photo by Tatyana A. via Flickr