Overseas Surrogacy Can Be a Legal Quagmire – Always Seek Expert Advice

25th May 2022 By

Overseas surrogacy arrangements are an effective means of completing families. As a High Court ruling showed, however, they are notoriously replete with legal pitfalls and should never be entered into without first taking professional advice.

The case concerned a UK-resident couple who arranged for a surrogate mother in Georgia to carry their third child. Their gametes were used to create the embryo, but they failed to apply for a formal parental order following the birth. They had since divorced and the fact of their three-year-old son’s surrogate birth only came to a local authority’s attention after it launched care proceedings in respect of him.

The absence of a parental order meant that, in law, the surrogate mother continued to be recognised as the boy’s parent although she was long since off the scene. His genetic mother had no parental rights in respect of him. The father’s position was somewhat different in that, if the surrogate mother was unmarried when she gave birth, his paternity would be recognised under English law. With the local authority’s support, the couple belatedly applied for a parental order.

Ruling on the matter, the Court noted that the exact circumstances of the surrogacy arrangement remained unclear. Emails between the genetic father and a surrogacy agency revealed a worrying disregard for the short- and long-term consequences and risks of what they were proposing. Neither of the genetic parents had provided information to the Court in a helpful, consistent or reliable way. Both of them said that they had been unaware of the need for a parental order.

The Court noted that an order had not been applied for within six months of the birth, as required by Section 54 of the Human Fertilisation and Embryology Act 2008. The evidence also indicated that payments made to the surrogate mother exceeded her reasonable expenses. Payment of the latter is all that the Act permits.

In making the order sought, however, the Court was prepared to waive the time limit and to retrospectively authorise the payments made. After much effort, and with the assistance of the Georgian Embassy, the surrogate mother had been tracked down and had given her written consent to the order.

The Court found that the order would serve the boy’s lifelong welfare interests. It would extinguish his legal relationship with the surrogate mother, but that reflected the reality of his life. It would promote the formation of his identity and render his attachments to his genetic parents and older siblings legally secure.

Source: Concious

Latest News

Relationship Status Put Under Spotlight in Divorce Case

26th February, 2024 By

Divorce proceedings are rarely cut and dry, especially where the passage of time adds complexity to matters. This was certainly so in a recent case that required a Family Court judge to rule on the validity of a decree nisi. The case centred on the divorce proceedings of a couple in their fifties and focused on a decree nisi that had been pronounced in 2012, following an application by the husband. Now seeking to finalise the divorce with a decree absolute, the husband asserted that the decree nisi had been properly...

Will Execution – Remote Witnessing Legislation Expires

22nd February, 2024 By

A legal amendment that was made during the COVID-19 pandemic allowing the witnessing of wills to take place via videoconferencing has officially expired. As of 31 January 2024, the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 is no longer active. It was introduced in response to the pandemic, as a means of facilitating the valid execution of wills via remote witnessing. The Order applied to wills made between 31 January 2020 and 31 January 2022, but was later extended to 31 January 2024. Section 9 of the Wills Act...

Psychotherapy Condition Leads to Contact Order Appeal

20th February, 2024 By

Wherever possible, the courts will do what they can to support contact between parents and children but, in some instances, that contact comes with conditions attached. The nature of such conditions was the cause of contention in recent appeal proceedings brought by the father of two young boys. The man appealed against a High Court order that allowed for contact periods with his children, which would progress from supervised to unsupervised and increase in length but were dependent upon him engaging in psychotherapy. This condition had been imposed following a...

Beware of Builders Offering Cut-Price Work – Court of Appeal Cautionary Tale

16th February, 2024 By

Every householder should understand the dire risks involved in opening their doors to those promising to carry out cut-price building work. A Court of Appeal decision provided distressing examples of almost the worst that can happen. A householder approaching retirement age was taken in by a workman who knocked on his door, offering to paint the front of his home for £1,000. He was introduced to another man – the offender – whom the workman described as his business partner. The pair proceeded, over a period of months, to carry...