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When a surrogacy case goes wrong

As things currently stand, surrogacy arrangements entered into by citizens of this country are fraught with legal pitfalls (hopefully things will soon improve, as I will explain in a moment). A recent case gives one more example of how things can go wrong.

Before I come to the case I should set out the legal basics, for the benefit of non-lawyers. I will call the woman bearing the child the ‘surrogate mother’, and for the sake of simplicity I will assume that she is bearing the child on behalf of an opposite-sex married couple, who I will call the ‘intended parents’, and that the husband is the sperm donor.

Under the present law the surrogate mother will be the child’s legal parent at birth. If she is married or in a civil partnership, her spouse or civil partner will be the child’s second parent at birth, unless they did not give their permission. The intended parents must apply to the court for a parental order, which will make them the legal parents. The application should be made within six months of the child’s birth.

When considering whether to make a parental order the court must have regard to the requirements of section 54 of the Human Fertilisation and Embryology Act 2008. In particular, it must be satisfied that the surrogate mother agrees unconditionally to the making of the order, and that no money or other benefit (other than for expenses reasonably incurred) has been given or received by either of the applicants for or in consideration of the making of the order, or the handing over of the child to the applicants, unless authorised by the court.

The last thing that I should briefly explain is the legal effect of a parental order. It will transfer the legal status as parents from the surrogate mother (and her spouse/partner) to the intended parents. Without an order there could be various problems for the intended parents. For example, they might not have the authority to make decisions about the child’s education and medical care, and they might need to involve the surrogate mother in future decisions concerning the child.

OK, to the case, Z and Y (Leave to Withdraw Application for a Parental Order). This concerned an application by a couple for parental orders concerning two children, who were born following a surrogacy arrangement they entered into in another country (we are not told where). The application was made in April 2018. In January 2019 the couple filed with the court the evidence they relied upon to satisfy the criteria under section 54. However, at a hearing in March the court directed that further information should be filed relating to the consent of the surrogate mother and the payments made by the couple, in particular whether they were for expenses reasonably incurred, or exceeded that amount, thereby requiring the courts authorisation.

The couple were not prepared to give any further evidence. They thought that the court should have made the parental orders on the information it had already received, and they decided they did not wish to continue with their application. The Cafcass officer wrote to them setting out clearly the legal implications for them and the children if they did not pursue their application for a parental order, but they were adamant that they did not wish to proceed, and they thereafter took no further part in the proceedings.

The matter went before Mrs Justice Theis. She had to decide whether or not to grant permission for the application to be withdrawn, having regard to the welfare of the children. Despite the obviously unsatisfactory nature of the decision, she did grant permission. However, she ended her judgment with a warning to the couple:

“…the applicants need to be aware of the limitations on their legal relationship with the children as a result of their decision not to proceed with the parental order application. This can have implications both in the short and long term. For example, the applicants will need to consider such matters as what provision is made following their deaths, as their status in relation to their eldest child and the younger children is different. They will need to ensure this difference is properly provided for, to make sure that whatever provision they intend should happen actually takes place.”

Why the couple chose not to cooperate from that point in the proceedings, we can only speculate. Were they worried that, when pressed, the surrogate mother may not consent, or that they had paid ‘too much’ to the surrogate mother? Or were they just fed up with the intrusions and/or procrastinations of the English legal system? We may never know.

Whatever, such a situation may not arise in future, at least for surrogacy arrangements made in the UK, if the recent recommendations of the Law Commission on the reform of our surrogacy laws are taken up (although payments to the surrogate mother may still be an issue). The Commission recommend in particular that the intended parents should become legal parents when the child is born, subject to the surrogate mother retaining a right to object for a short period after the birth.

For a summary of the Commission’s proposals, see this post by Stowe Family Law solicitor Bethan Carr, who specialises in domestic and international surrogacy arrangements.

You can read the full judgment in Z and Y here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers, with his content now supporting our divorce lawyers and child custody lawyers

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