Under UK law, surrogacy agreements are unenforceable and the legal parents of the child are the surrogate and, if she is married, her husband. A parental order (which amends the birth certificate and makes the biological parents the legal parents) can only be made if the surrogate and her husband give their full free and unconditional consent more than six weeks after the birth.
The surrogate in this case, age 51, gave birth to twins conceived at a fertility clinic with the intended father’s sperm and the intended mother’s eggs. The parents had met the surrogate via a UK agency and gone through their mandatory ‘getting to know you’ period and implications counselling before treatment. However during the pregnancy the relationship broke down after the surrogate felt the intended parents did not show her enough consideration when concerns were raised about her health. The children were born and care was transferred to the parents. However, when they applied to court to become their children’s legal parents, the surrogate and her husband refused to consent. As Mrs Justice Theis said “What is perhaps so unusual about this case is that respondents wish to take no part in the children’s lives. Their rationale for refusing their consent is due to their own feelings of injustice, rather than what is in the children’s best interests.”
A guardian was appointed to represent the children, who recommended that a parental order was clearly in the children’s lifelong welfare interests. Attempts to persuade the surrogate to change her mind, including through mediation, failed. She told the court that her motives for refusing consent were that she wanted the children to remain in permanent legal limbo to ensure that “what has happened is not forgotten”. She did not wish to have any ongoing contact with the children.
Ultimately the judge’s hands were tied, since UK law gives the court no power to waive consent in surrogacy cases (something which is unique in family law – not even in adoption cases does the birth mother have such a powerful veto). The judge made a child arrangements order, so the parents had the authority to make day to day decisions for their children, but the court was unable to transfer parenthood or have the children’s birth certificates amended to show that the parents – rather than the surrogate and her husband – were the children’s natural and biological parents. She said: “Without the respondents’ consent the application for a parental order comes to a juddering halt, to the very great distress of the applicants. The result is that these children are left in a legal limbo, where, contrary to what was agreed by the parties at the time of the arrangement, the respondents will remain their legal parents even though they are not biologically related to them and they expressly wish to play no part in the children’s lives.”
Mrs Justice Theis adjourned the parents’ application, in the hope that in the future the surrogate would change her mind or there would be a change to the law. She noted: “The Law Commission has recently announced that surrogacy may be included in their next programme of law reform and have invited responses as to whether this should be an area that is included.”
This case is yet another example of how urgent law reform is needed, and perhaps one of the most stark examples yet of how the current law is failing children. Fortunately, disputed surrogacy cases are incredibly rare, and in the overwhelming majority of situations everyone honours what was agreed at the outset. However, as this case shows, the law does not give the court enough flexibility when things go wrong, and as a result children’s welfare is being put at risk. The family court is currently powerless to make an order if the surrogate exercises her absolute veto, completely irrespective of the circumstances and what is in the child’s best interests.
What we need is a system of pre-birth orders to settle parentage before a child is born, based on what was intended (and put in writing) before the child was conceived. Although in the overwhelming majority of cases everyone will consent to the intended parents becoming the legal parents on birth, if there is a dispute the family court should be able to decide what is in the child’s best interests – as it does in all other areas of family law. The current legal uncertainty around UK surrogacy arrangements is bad for everyone: it leaves parents vulnerable but the vulnerability cuts both ways too – it also means that a surrogate whose intended parents do not honour their promises regarding expenses/compensation or do not assume responsibility is left, quite literally, holding the baby. Everyone involved in UK surrogacy – and most importantly the children – deserve better legal protection.
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