High Court judge warns ‘loud and clear’: international surrogacy parents need a UK court order

May 25, 2013

In a High Court ruling published today (a case in which we represented the parents), Mrs Justice Theis has warned parents of children born through international surrogacy that they must apply to court in the UK if they want to be the legal parents of their children.

She said: “The legal relationship between children born as a result of surrogacy arrangements and their intended parents is not on a secure legal footing without [a UK parental order] being made. That can have long term legal consequences for the children… The message needs to go out loud and clear to encourage parental order applications to be made in respect of children born as a result of international surrogacy agreements, and for them to be made promptly.”

Mrs Justice Theis was granting parenthood to a gay couple who had conceived twins through surrogacy in California. She said: “I am entirely satisfied the applicants have acted in good faith at all stages.” She published her decision to send a message that British parents through surrogacy need to engage with UK law. Increasing numbers are travelling to places like California where there are commercially run surrogacy agencies. In the UK, it is a criminal offence for third parties to broker surrogacy arrangements for profit – something the judge pointed out, saying it was not part of the case for her to consider the legality of the actions of the agency involved (the British Surrogacy Centre, which has an office in Essex) but she sent a copy of her judgment to the relevant UK authorities for investigation.

UK law does not recognise Californian birth certificates naming the intended parents, instead treating the surrogate and her husband as the parents. British parents need a parental order from the UK family court to become the legal parents in the UK. Without it, they have no right to make decisions as parents and may be caring for their child illegally. Their child may lack basic legal rights to inheritance, child support and British nationality. If the parents do not apply to court within six months of the birth, they lose the chance of getting a UK birth certificate forever.

In this case, the parents applied and the court made a parental order. The surrogate – in accordance with Californian law – had been paid $56,750 plus expenses for her inconvenience.  Californian surrogacy attorney Michelle Keeyes, who works with many couples from the UK, says: “In the US it is typical to pay a first time surrogate approximately $25,000-$30,000 for her time and inconvenience over the course of the pregnancy. For UK parents, it is imperative that they retain legal counsel in both the UK and the US.”

Payments for surrogacy are not illegal under UK law, but if more than ‘reasonable expenses’ is paid the court has to weigh things up carefully before making a parental order. This is not the first time the High Court has ‘authorised’ a commercial payment to a foreign surrogate, although the amount in this case was larger than in any previous case. As before, making an order was justified because it ensured the children’s lifelong security.

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