High Court awards parental order in first South African surrogacy case

July 17, 2015
Following a recent ruling by the High Court (Re A [2015] EWHC 1756 (Fam)), legal parenthood has been awarded to a same sex couple who had a child, born through surrogacy, in South Africa. The parents have previously had a little boy by a different surrogate in South Africa and a parental order was made in their favour in 2012.

This particular case has been published by the court as Mrs Justice Theis felt it was particularly significant as it was her first experience of a surrogacy arrangement in South Africa, the child in question was given permission to attend the final hearing over video link, and the parental order reporter responsible for acknowledging the welfare of the child was assisted by a social worker in South Africa.

The surrogate mother, a widowed lady, gave birth to the couple’s second child, who was the subject of this parental order application. A parental order was required due to the discrepancy between the law in the UK and the law in South Africa.

Before the birth, the parents obtained an order from Cape Town High Court confirming the proposed arrangement between the parents and the surrogate mother. This had the effect of registering the couple as the legal parents of the resulting child in South Africa.

However, this is not recognised under UK law which instead treats the surrogate as the legal mother and, as the surrogate is widowed, the biological father as the legal father.

It is due to this contradiction between the laws in different jurisdictions that a child born through international surrogacy requires a parental order from the UK family court. Without it, parents can’t obtain a UK birth certificate and have no right to make fundamental parental decisions.

In this case a parental order was applied for within the six month time frame, and was granted to the gay couple by Mrs Justice Theis who said it was “clearly in the child’s lifelong interests that there is consistency as regards her legal status in relation to those who care for her across the relevant jurisdictions where she is likely to live.”

This is just another of the many international surrogacy cases before the High Court which demonstrate that the framework surrounding the law on surrogacy in the UK is inadequate. In October 2014, Jessica Lee MP led a Westminster Hall debate in Parliament about the need for surrogacy reform. She set out how the law on surrogacy is outdated, limited and in places illogical, and requested that Parliament take a fresh look at the law on surrogacy in the UK. Both the NGA and BB team are pushing to keep this matter at the top of the Parliamentary agenda and hope that we will soon see the reform that is required.

You can read more about the case here or if you would like more information about international surrogacy you can visit the knowledge centre on our website. Alternatively if you would like any specific advice please give our team a call on +44 (0)20 3701 5915.


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