A sobering surrogacy judgment

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The recent case of Re AB (Surrogacy Consent) [2016] EWHC 2643 serves as a reminder of the potential problems of entering into a surrogacy arrangement, since they are not legally binding. 

It is important to note that:

  • The commissioning parents are not the legal parents of the surrogate's child and will only become legally recognised as parents if a Parental Order is made.
  • The surrogate mother, whether or not she is the biological mother, remains the child's mother in the eyes of the law unless and until a parental order is made.

This means that the surrogate mother, and her husband or partner, have parental responsibility and therefore are entitled to make all the key decisions concerning the child's life, including such matters as education, medical treatment, religion, change of name and removal from the jurisdiction.

In Re AB the commissioning parents, C and D, are the biological parents of twins born in 2015 via an arrangement with E, the surrogate mother, and F, her husband. Since the day after the twins were born C and D have cared for them, and E and F have had no contact with them and do not wish to be involved in their lives.

C and D applied for parental orders to confer on them the legal status of being the twins' parents. In order for the court to make a parental order E and F need to consent. They have refused to do so. Unfortunately, when E was pregnant she felt C and D did not show enough concern for her well-being following some medical concerns. Thereafter, the relationship between the four adults broke down.

In the circumstances, therefore, the court could not make a parental order, even though it would be in the twins' best interests. Whilst E and F consented to an adoption order being made, the court found this to be inappropriate as C and D are the biological parents of the twins. Therefore, unless E and F change their minds they will have parental responsibility and be the legal parents until the twins turn 18. This is of course wholly unsatisfactory.

If you are considering entering into a surrogacy arrangement it is important to be aware of the law in this area. Please contact a member of the Blake Morgan family team if you have any queries.