South African surrogacy considered by High Court

surrogacy

A toddler already recognised as the legal child of a same sex couple in South Africa should be given the same status in the UK, the High Court has ruled.

The case concerned a child referred to as ‘A’, who was born in the African nation. She was seven months old at the time of the hearing.

The commissioning parents were a male same sex couple referred to as ‘H’ and ‘M’ while the birth mother was  a widow. The baby was conceived using sperm from M and a donor embryo.

In the High Court, Mrs Justice Theis noted that the case was:

“…this court’s first experience of dealing with a surrogacy arrangement from South Africa.”

In addition, the court hearing was held, unusually, without the baby present in the courtroom. She appeared only via video link from South Africa.

The couple had previously commissioned a baby from a different surrogate mother in South Africa. They were granted a parental order for this older child in 2012.

But when they decided to seek a second child, they were unable to use the same surrogate so persuaded a female employee to undertake the role.

The couple themselves live in South Africa but applied in the English courts on the basis of the ‘H’s domicile in (long term  connection to) Britain. He was born here and plans to return or retire here after pursuing varied business interests abroad.

The couple applied for a parental order transferring the legal status of parents to them. These are issued under Section 54 of the Human Fertilisation and Embryology Act 2008 (HFEA). Under English law, surrogate mothers remain the legal parents of children them, despite the absence of a biological link, until parental status is transferred by a court.

However, South African surrogacy law differs in a number of key respects. A court order must be obtained before conception. In addition, the surrogate must have already had a living child. Upon entering the surrogacy agreement, the birth mother must consent in an affadavit to giving up all her rights. As a result, the commissioning parents are treated as the child’s legal parents from birth. Therefore no parental or adoption order is required.

As in the UK, however, surrogacy cannot be treated as  source of income – the birth mother must undertake the role for altruistic reasons only.

The couple in question complied with South African law, obtaining the relevant order at the High Court in Capetown before the conception took place.

At the London hearing, Mrs Justice Theis considered each of the conditions required by section 54 of the HFEA. These are:

1/ A biological connection in the case of at least commissioning parent.

2/ The parents must be in an “enduring” relationship.

3/ The application for a parental order must be made within six months.

4/ The child must be living with the commissioning parents at the time they apply for the order.

5/ At least one party must have legal domicile in the UK.

6/ The applicants must be over 18.

7/ The surrogate mother must consent.

And 8/ Only expenses may be paid to the surrogate.

The parties met all these conditions. The Judge finally turned to the central legal question – the child’s lifelong welfare needs, as defined by section one of the Adoption and Children Act 2002.

As the couple were already A’s parents under South African law, it was clearly in her best interests for that relationship to be legally recognised in the UK as well, Mrs Justice Theis declared.

The ruling is here.

Photo of the South African flag by Mister-E via Flickr under a Creative Commons licence

Stowe Family Law Web Team

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