Surrogacy: a special case? By Cameron Paterson.
Marilyn writes: I welcome informed guest posts from readers and I am delighted to publish a post today by Cameron Paterson, a journalist with an interest in legal matters. He has written about a new case in the High Court, involving the breakdown of a marriage between husband and wife who are also the parents of a child, born to them via a surrogate mother. The husband asked the court to set aside the parental order they had obtained.
Cameron examines the law, looks at what happened in court, and why.
Surrogacy is still quite rare in the UK, unlike the USA. Sir Elton John and David Furnish (above) made no secret that their first child was born to a surrogate mother, and rumour has it that she is now carrying their second child.
As I have mentioned in recent posts, in the family court judges are called upon to make judgments that require the wisdom of Solomon. This case is no exception, and Mr Justice Hedley does it well. His concern above all for the innocent victim of it all – the child – shines through.
The end of a relationship is, for most of us at least, a very difficult time. We have to deal with frightening changes and huge practical considerations at the same time as we struggle to control a torrent of emotions. And when children are involved, a difficult situation can become even more so. Sadly, some people succumb to the temptation to involve their children in disputes with their former partner.
When the couple in question are the biological parents of the children, there are well-established legal principles for the judges in family courts to apply. An unhappily married couple who have had a family naturally cannot seek to legally remove a parent from their child, however unsuitable one thinks the other may be. And when the parents are adoptive, the law offers equal clarity. It is virtually impossible to reverse an adoption, even if in the most serious of cases, the relationship between adoptive parents and child fails and the child is taken into care. See the recent case of Re K  EWHC B9 (Fam).
But technology and society never stand still, and family law judges now face a new variation on the family: surrogacy.
Surrogacy is defined as an arrangement “when another woman carries and gives birth to a baby for the couple who want to have a child.” The surrogate mother may be the child’s genetic mother (known as traditional surrogacy). Alternatively, she may have no genetic relation to the child (gestational surrogacy).
Such arrangements have become more common in recent decades as medical technology has made fertilisation easier to achieve. Sometimes the surrogate mother is motivated by simple altruism or friendship with the couple, and sometimes she receives financial compensation.
When a child is born of surrogacy, the birth mother is still regarded in law as the child’s mother, and will be named as such on the child’s birth certificate. However, she may not fill this legal role for very long.
In a process similar to adoption, the commissioning parents – the couple who arranged for the surrogate mother to carry a child – can apply to the courts for a parental order that allows them to re-register the birth and be named as the child’s parents, under the Human Fertilisation and Embryology Act 2008.
Section 54 of the Act reads, in part:
(1) On an application made by two people (“the applicants”), the court may make an order providing for a child to be treated in law as the child of the applicants if—
(a) the child has been carried by a woman who is not one of the applicants, as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination,
(b) the gametes of at least one of the applicants were used to bring about the creation of the embryo…
In other words, parental orders, which remove the legal role of the birth mother, can only be sought when one party in the couple is a biological parent of the child.
Clearly parental orders arise in different circumstances to conventional parenthood or adoptions, so should their children be treated any differently if the relationship between the couple comes to an end? Can the parental relationship be severed?
In a recent High Court case, the Honourable Mr Justice Hedley heard what is believed to be the very first application to have a parental order set aside, after the end of just such a relationship.
The case – G v G  EWHC 1979 (Fam) – centred on a child, D, born in January 2011, as the result of a surrogacy arrangement between Mr and Mrs G and a birth mother.
As might be expected, the child was given to G and G, as the commissioning parents, not long after the birth. The previous November, the couple had applied for a parental order and this was granted the following May.
And then, one year after the couple’s initial application and two months after the couple had separated , Mr G returned to the courts to request that the parental order be set aside. He cited the procedural irregularities and also alleged that Mrs G had harboured a secret intention to separate from him and bring up the child on her own. Since the separation, the baby had been in the primary care of Mrs G.
Mr G is, of course, the child’s biological father and would retain parental responsibility for the child in any event. However Mr Justice Hedley refused his application to set aside the parental order, which would have severed the legal ties between the child and his other parent: his mother.
There was no reason, declared the judge, to believe that Mrs G had already made a definite decision to end the relationship in the period between the initial application for a parental order and May 2011, when it was granted.
This is new territory for the law, so there were no direct legal precedents for Mr. Justice Hedley’s decision. Instead, he looked to the legal principles governing adoption orders, which bear obvious similarities to parental orders.
Mr Justice Hedley concluded:
Like an adoption a parental order both confers lifelong status on the applicant and deprives those who until then had parental status of that status on a lifelong basis.
Legal precedents, he continued, “make it very plain that to achieve revocation (of an adoption order) is no small task.”
At the time the application for a parental order was granted, “all were seeking that Mr and Mrs G should have the status of lifelong parents, even if they were likely to separate.”
There was also, most importantly, the question of the child’s welfare. In his judgment, Mr Justice Hedley was clear about this point:
I do not believe that a revocation of this order is consistent with D’s welfare, indeed if anything it conduces against it…. Mrs G is the only mother that he has known and his welfare will be undermined if she is deposed from that role.
Yes, parental orders are still a relative legal novelty but sound legal principles, which equate surrogacy with adoption in terms of legal consequences, and placing the welfare of the child before the wishes of the parents, still apply.
Surrogacy, then, is not a special case.
Image credit: Elton John AIDS Foundation.
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Marilyn Stowe is the senior partner in Stowe Family Law, which has offices in Yorkshire, Cheshire and London. With more than 30 years’ experience handling divorce cases and family law proceedings she is regarded as one of the most formidable and sought after divorce lawyers in the UK. In 2012, Marilyn became one of the first solicitors to qualify as a family law arbitrator.
All persons mentioned in the scenarios are fictitious: details have been deliberately changed in order to protect identities and other confidential circumstances of my clients. All advice and information on this blog including posts written by guest authors, is given only as a general guide to the operation of the law on the date of publication. Readers must place no reliance whatsoever on the content of this blog and must always obtain their own legal advice. Marilyn Stowe, Stowe Family Law LLP and guest authors accept no liability whatsoever arising as a result of reliance upon its content.
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