The uncharted waters of the surrogacy case show the importance of expert legal advice – Lynsey Brown

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Lynsey Brown is Partner, Harper Macleod

The couple, known as Mr. and Mrs. X, entered into a surrogacy agreement in the United States in 1998. Their surrogate mother, known as Mrs. Z, became pregnant with an embryo created at the aid of gametes from Mr. and Mrs. X. Their son, known as Y, was born in California. Orders were made under US law providing that Y was legally the child of Mr. and Mrs. X, the intended parents. Mr and Mrs X brought Y back to the UK, assuming the legal situation in the UK was the same.

To Mr and Mrs X’s ‘major shock’, Mrs Z contacted them in September 2021 to alert them to their need to obtain a parenting order in the UK if they were to be treated as Y’s parents here, as well than in the United States. Ms Z and her husband remained, under UK law, Y’s legal parents. She had become aware of this when she later entered into a surrogacy agreement in similar circumstances. At that time, Y was in his twenties.

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Mr and Mrs X filed for a parenting order in court, despite the fact that their son was now of age, and despite their request having far exceeded the legal time limit of six months from birth for such requests . Neither Y nor Mrs. Z and her husband opposed the request. All parties involved wanted the Order granted, to reflect what they always believed to be the case and the reality as it had been since Y was born.

In her judgment, Judge Theis stressed the “enormous significance” of the request for everyone involved. In the UK, where a child is born via surrogacy, the surrogate mother will be considered by law to be the legal mother of the child and, if she is married or in a civil partnership, and he cannot be demonstrated that her spouse or partner has done so does not consent to her medical treatment to become pregnant, her spouse or partner will be considered the father or second legal parent, even if there is no genetic link between these persons and the child.

In all cases, to transfer the legal filiation of the surrogate mother, and of her spouse or partner if applicable, to the intended parent(s), the intended parent(s) must go through a legal procedure. This involves asking the court for a parenting order.

This remains the case in cases of international surrogacy, even when the child is legally considered the child of the intended parents in the country where it was born and where the surrogacy agreement took place. Mr and Mrs X’s inability to seek and obtain a parenting order upon their return to the UK meant that Y remained, under UK law, the child of Mrs Z and her husband. This in turn meant that Y had, for example, no automatic legal right to inherit from Mr. and Mrs. X, not being recognized here as their child and heir.

Madam Justice Theis granted the parenting order, commenting that “the fact that Y is now an adult does not preclude the court from making a [parental] Ordered… [T]he[Loide2008surlafécondationhumaineetl’embryologienelimitepasquedetellesdemandessoientfaitesuniquementencequiconcernelesenfants”ElleaégalementsoulignéquelarécenteconsultationdelaLawCommission(conjointementaveclaScottishLawCommission)doesasoulevéaucuneobjectionàcequedesordonnancesparentalessoientrenduesàl’égardd’adultesaffirmantquecela”reflètepeut-êtrequ’enfaittoutlemonderestel’enfantdequelqu’unmêmelorsqu’ilsserontadultes”Lejugeaégalementestiméquelescirconstancesjustifiaientlaprolongationsignificativedudélaihabitueldesixmoispourintroduirelademande[HumanFertilisationandEmbryologyAct2008doesnotlimitsuchapplicationsonlybeingmadeinrelationtochildren”ShealsohighlightedthattherecentconsultationbytheLawCommission(jointlywiththeScottishLawCommission)raisednoobjectiontoparentalordersbeingmadeinrelationtoadultssayingthis”perhapsreflectsthatasamatteroffacteveryoneremainsthechildofsomeoneevenwhentheybecomeadults”Thejudgealsoheldthatthecircumstancesjustifiedthesignificantextensionoftheusualsix-monthtimescaleformakingtheapplication[Loide2008surlafécondationhumaineetl’embryologienelimitepasquedetellesdemandessoientfaitesuniquementencequiconcernelesenfants»ElleaégalementsoulignéquelarécenteconsultationdelaLawCommission(conjointementaveclaScottishLawCommission)n’asoulevéaucuneobjectionàcequedesordonnancesparentalessoientrenduesàl’égardd’adultesaffirmantquecela”reflètepeut-êtrequ’enfaittoutlemonderestel’enfantdequelqu’unmêmelorsqu’ilsserontadultes»Lejugeaégalementestiméquelescirconstancesjustifiaientlaprolongationsignificativedudélaihabitueldesixmoispourintroduirelademande[HumanFertilisationandEmbryologyAct2008doesnotlimitsuchapplicationsonlybeingmadeinrelationtochildren”ShealsohighlightedthattherecentconsultationbytheLawCommission(jointlywiththeScottishLawCommission)raisednoobjectiontoparentalordersbeingmadeinrelationtoadultssayingthis“perhapsreflectsthatasamatteroffacteveryoneremainsthechildofsomeoneevenwhentheybecomeadults”Thejudgealsoheldthatthecircumstancesjustifiedthesignificantextensionoftheusualsix-monthtimescaleformakingtheapplication

The family said they hope their case, which has entered uncharted waters, will send a message to others who may find themselves in a similar situation. The decision may raise awareness of the importance of taking legal advice from a family law attorney in relation to any surrogacy agreement that has been, or may be made, here or in another jurisdiction, and the need to ensure that legal parentage is resolved in UK courts to ensure the safety of their family unit.

Lynsey Brown is Partner, Harper Macleod

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