Surrogacy beyond borders: a historic decision

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It is well known and accepted that being a parent involves a whole series of rights and responsibilities. But what if you had raised a child for more than 20 years without having any legal obligation to do so and without having any rights as a parent? This is exactly the scenario that Mr. and Mrs. X have recently found themselves in.

The couple, who lived in the UK, entered into a surrogacy agreement in the US in 1998. Their surrogate mother (Ms. Z) became pregnant with an embryo created using gametes from Mr. and Mrs. X and gave birth to their son, Y, in the US. The couple obtained injunctions under US law that resulted in Y being the legal child of Mr. and Mrs. X. This was exactly the result that Mr. and Mrs. X and Mrs. Z had set out to do. ‘reach. With the security of knowing that these orders were in place, they brought Y back to the UK. They assumed that business was now over and that the laws in the UK were the same as in the US. They were wrong.

International GPA

To be treated as Y’s parents in the UK, Mr and Mrs X must have obtained a parenting order in the UK within 6 months of Y’s birth. This remains the case where an international surrogacy has took place, even where the child is legally considered the child of the intended parents in the country where the surrogacy took place, and the child is ultimately born. In the present case, notwithstanding that under US law Y was legally the child of Mr and Mrs X, in the absence of Parental Order under UK law he was the child of Mrs Z and her husband.

Mr. and Mrs. X remained unaware of all this until September 2021, when Mrs. Z contacted them to inform them of their predicament. By this time, Y had reached adulthood and was in his twenties.

Parenting orders for adults

Obtaining a parenting order in the UK transfers the parentage of the surrogate mother (and her spouse or civil partner if applicable) to the intended parents, in this case Mr and Mrs X. After taking Knowing of their problem, Mr and Mrs X applied for a parenting order in the English courts. Strictly speaking, the law only authorizes such requests within 6 months of the birth of the child. Obviously, their application was more than 2 decades behind. Y was now an adult. Neither Y nor Mrs. Z and her husband opposed the request. All parties involved wanted the order granted. The court was persuaded to grant the order. The granting of the injunction merely placed everyone involved in the position they had always understood to be the legal position since Y was born.

A landmark decision

The granting of the order is a historic decision. In delivering its judgment, the court made it clear that the Human Fertilization and Embryology Act 2008 does not limit such requests to be made only in relation to children. It seems logical from a logical point of view. After all, no matter what age a person reaches, they will always be someone’s child. While this case concerned the English courts, the law is the same in Scotland. If a similar case arose in Scotland, it is highly likely that the court here would look to this judgment for guidance.

Any individual or couple undertaking or involved in surrogacy or assisted reproduction should seek independent legal advice.

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