Last week, the English High Court published a case about a surrogacy dispute known as JP v LP & Ors , in which Louisa Ghevaert and the team at Porter Dodson Fertility represented the father. The case is significant because it is rare for UK surrogacy arrangements to fall into dispute and because it highlights the complex legal problems that can arise in the absence of specialist legal advice.
The case relates to a little boy who was born following an informal surrogacy arrangement in March 2010. A married couple entered into a private surrogacy arrangement with a friend of the wife. Although the wife had given birth to a child from a previous relationship, she had undergone a hysterectomy and was unable to conceive a child with her husband. The surrogate mother conceived artificially at home using the husband’s sperm and her own egg (a ‘host’ surrogacy arrangement).
As conception did not follow treatment at a UK fertility clinic licensed by the Human Fertilisation and Embryology Authority, there was no third party consideration of the welfare of the child. The couple and the surrogate mother did not receive information or counselling to ensure they understood the issues arising from a surrogate birth or the legal effect of an informal arrangement.
The surrogate mother gave birth to a child in March 2010 at the Leicester Royal Infirmary and he was handed over to the couple by agreement. The surrogate mother was by operation of law the child’s legal (and biological) mother and the intended father was the child’s legal and biological father. The surrogate mother and the intended father were named as the parents on the child’s birth certificate and both held parental responsibility for the child. As a result, the intended mother had no legal or biological relationship with the child at birth.
The couple’s marriage broke down within month’s of the child’s birth and they separated. The intended mother then issued an application for a residence order in respect of the child in Leicester County Court and a shared residence order was made in her and the intended father’s favour in July 2010. However, despite undertakings by the intended parents at court to regularise the child’s legal status by way of a parental order application they failed to issue the application within the statutory six month time limit following the child’s birth.
Further difficulties followed in 2011. The case was transferred to the English High Court to address the issues arising in circumstances where there was no parental order regularising the legal status of the three adults involved and to consider how this impacted on the exercise of parental responsibility for the child.
On 2 July 2013, given the exceptional circumstances of the case, the judge made the child a ward of court. She endorsed the shared residence order between the intended parents and delegated parental responsibility to them jointly. The judge further prohibited the surrogate mother from exercising any parental responsibility for the child without leave of the court.
The judge highlighted that there is no provision within the Human Fertilisation and Embryology Act 2008 to extend the six month statutory time limit post the child’s birth. She highlighted that the policy and purpose of the parental order regime is to provide for the speedy regularisation of legal parenthood in respect of surrogate born children and that this policy does not sit comfortably with continued involvement by the surrogate mother in the lives of the intended parents and their child.
The judge highlighted the ‘real dangers’ that can arise with informal surrogacy arrangements. She highlighted the importance of a multi-agency surrogacy protocol operating in every Health Authority in England and Wales, as this would go some way to ensuring that in informal surrogacy arrangements the welfare of the child is considered and the adults will be given important information and advice. She also highlighted that there are few lawyers with specialist expertise, demontsrated by the fact that the first firm of solicitors drafted an illegal surrogacy contract for the parties and following the issue of Children Act (residence) proceedings for the child the statutory time limit for a parental order was not known or checked.
Comment from Louisa Ghevaert
This is a serious case of surrogacy gone wrong, which could have had devastating consequences for those involved. A combination of misinformation, a catalogue of legal errors and marital breakdown caused immense distress, recrimination and legal uncertainty for the intended parents, their surrogate mother and their child. A complete lack of specialist legal advice initially resulted in the illegal drafting of a surrogacy contract, confusion about the parties’ legal status and a failure to obtain a parental order.
Unlike mainstream family law the parental order regime is governed by assisted reproduction law. There is no legal flexibility in the non-extendable six month deadline and it is just that, non-extendable.
Having ‘missed the boat’ with a parental order application, the surrogate unintentionally remains legal mother and financially responsible for the child. The child also remains a ward of court and the subject of a shared residence order. A parental order would have been a permanent legal solution which would have entirely removed the surrogate’s legal status.
Anyone entering into a surrogacy arrangement, whether by private arrangement or involving treatment at a UK licensed fertility clinic or abroad, should first obtain expert legal advice. Intended parents and surrogate mothers need to understand the implications of a surrogacy arrangement and the importance of a parental order to legally protect themselves and the surrogate born child”.
Click here to read more about the case and surrogacy law in the event of a surrogacy dispute.
If you would like to discuss your situation or find out more about surrogacy law in the UK or internationally please contact Louisa by email Louisa.firstname.lastname@example.org or call +44 (0)207 222 1244.