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Surrogacy and second thoughts

At one time, or another, we have all seen a shocking headline which relates to surrogacy. Just last week there was an article in the Guardian online entitled “US couple withdraws legal action against ABC over claim they abandoned surrogate child with a disability”. In this instance the US couple, who had embarked upon a surrogacy arrangement in the Ukraine in 2015, took issue with their portrayal in an episode of Australian current affairs program Foreign Correspondent aired in 2019 and entitled ‘Motherland’, and a website article titled ‘Damaged babies and broken hearts: Ukraine’s commercial surrogacy industry leaves a trial of disasters’.

The Background

The intended father, Etnyre, was also the biological father of the child born through the surrogacy arrangement in the Ukraine. Sadly, the child was born prematurely, and she had serious health complications. The publications stated that the child had been abandoned following birth “because he did not like the child’s appearance”. It was also stated that Etynre and his wife Irmgard, hadn’t provided for the child financially, arranged to see her, or organised for her to move to the US. Instead, the couple engaged the surrogacy agency for a second time and had twins born via surrogacy who do now live with them.

Reflections

There is a lot to think about if you are considering surrogacy, but the Guardian article perhaps highlights, and feeds into, the biggest fear; what if the intended parents and/ or surrogate changes their mind?

It is not uncommon to catastrophize and jump to worst case scenario, it’s how our brains operate. But these are very real concerns and are quite understandable. Surrogacy in the UK is built around trust and this can be quite a scary concept when you’re worried that you might be left holding the baby, or not holding the baby.

Surrogacy Rights

In the UK, the surrogate will always be the legal mother to any child, regardless of biology and even if the child is born in another jurisdiction that will allow the intended parents to be named on the birth certificate. This is often surprising for intended parents to hear. Who will be the legal father, or second legal parent, will depend on whether the surrogate is married, whether the intended parent has a biological link to the child and whether the child was conceived at a clinic. This often means that the legal parents at birth, are not who is intended to raise the child and so parentage needs to be resolved.

At present in the UK the intended parents must apply for a parental order, which will reassign legal parentage to the intended parents. The surrogate, and her husband if she is married, will need to provide their consent for the order to be made.

The future of UK Surrogacy

It is actually very rare for there to be disputes arising from surrogacy arrangements, particularly where everyone has been sensible, and a great deal of thought and preparation has been put in. However, it is is a scary thought to enter into such a life changing arrangement without any legal protection.

The law is without doubt outdated and needs to provide more protection. There are changes being proposed that would see intended parents recognised as the legal parents from birth and without the need for a court application. There are conditions attached and these changes are still a long way off, but we are making small steps forward.

These changes would certainly provide much needed reassurance for the intended parents and surrogates.

Get in touch 

If you would like advice on your surrogacy rights, or other family law issues, please contact our Client Care Team to speak to one of our specialist surrogacy lawyers here.

Liza is based in our Winchester office and is is experienced in divorce, financial matters, and legal issues issues involving childen.

Get in touch

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