Imagine this scenario….
A and B live in England but decide to enter into a surrogacy arrangement abroad because they find the laws in England too complicated. A and B travel to country X where surrogacy is legal. Everything runs smoothly, and nine month later the surrogate gives birth to a gorgeous little boy, who they artistically name C. C is genetically related to B, as his sperm was used to impregnate the surrogate, but he is not genetically related to A. This is of no concern to A and B who love C regardless of his genetic makeup. The surrogate and her husband wish A, B and C well and they carry on with their lives in the expectation that they will never see them again.
A and B register C’s birth in country X where they are named on C’s birth certificate as his mother and father. They obtain travel documents for C and they all come home to England where they plan to live happily ever after.
It is very easy to assume that because A and B are named on C’s birth certificate as his parents that their status when they return to England will be unchanged. They would believe themselves to be C’s parents and therefor would believe themselves to have the legal right to make important decisions about his life. This is a common misconception and many couples who enter into an international surrogacy arrangement do not realise that their arrangement is not recognised in English law. This means that in England, the surrogate and, if she is married, her husband/civil partner, are considered to be the child’s legal parents thereby leaving the intended parents with no legal rights.
Returning to our scenario;
After returning to England, A and B seek legal advice and learn that the arrangement they entered into in X is not recognised here and therefore so far as the law in England is concerned, C’s legal mother is the surrogate and as she was married, C’s legal father is the surrogate’s husband. A and B are devastated to learn that they are not C’s legal parents, they do not have parental responsibility and are therefore not entitled to make any decisions concerning C’s life or upbringing.
This situation is unsatisfactory as, in law, A and B are not viewed as C’s parents and do not have parental responsibility for him and cannot make decisions concerning his life. By way of an example, if C needed urgent medical treatment, A and B would not be able to consent to him receiving it. That consent could only be provided by the surrogate and her husband or by way of a court order.
In order to rectify the situation, it would be necessary for A and B to regularise their surrogacy arrangement in England. They would do this by making an application to the High Court for a Parental Order. At present, these applications can be extremely complex as there are strict criteria that must be satisfied, although recent case law does suggest that the court, in some circumstances, are willing to broadly interpret the rules if it is in the child’s best interests to do so. This criterion is the same as if the surrogacy arrangement had been entered into in England and Wales. This is a complex area of the law and we would recommend that legal advice is sought from a specialist firm at the earliest opportunity.
If A and B’s scenario sounds familiar and you either are considering international surrogacy or have a child born by way of an international surrogacy arrangement and you have not obtained a Parental Order, please do contact us in order to seek legal advice. It is important that your family situation is reflected in English Law and you are viewed as your child’s legal parent and have parental responsibility for your child.
PS. The Happy Ending - A and B applied for and were granted the Parental Order sought – if you want to learn more about the requirements they had to fulfil, please see our article.
