NGA leading international surrogacy case – judge awards parenthood to gay dads after Indian surrogate ‘disappears’

October 3, 2012

The Telegraph and Daily Mail have today reported the international surrogacy case of D and L (surrogacy) 2012. The case marks a legal first: the court agreeing to make a parental order after the surrogate mother could not be found to give her consent. We are proud to have worked with the parents on this case to help win legal security for their family.

What happened?

A UK same sex couple had twin boys through an Indian surrogacy arrangement. They had taken legal advice at the outset and knew they would need their surrogate’s consent, after the birth, to become the legal parents under UK law.

They became concerned during the pregnancy that their clinic might not be as helpful as they had thought, so we wrote to the clinic explaining what was needed, and the clinic confirmed they would help. However, after the birth, the clinic refused to secure the surrogate’s notarised consent. As a final insult, our clients were sent a couriered package which they thought finally contained the consent document they desperately needed – instead it contained a single sheet of paper with a sketch of an obscene gesture. They then tried to track their surrogate down themselves, but the address they had been given for the surrogate was a false one and they could not find her.

They applied to the UK court for a parental order and asked the judge to help. Focusing on the need to give the boys legal security with their parents throughout their lifetime (and our clients’ extensive efforts to obtain the required consents), Mr Justice Baker in the High Court made them their sons’ legal parents without the surrogate’s confirmed consent.

What does the law say?

UK law requires parents who have a child through surrogacy to make an application to the family court, after the birth, for a ‘parental order’. Once granted, a parental order makes them their child’s legal parents in the UK.

The criteria for getting a parental order are strict and include that the surrogate mother (and her husband if she is married) must consent to the order being made ‘fully, freely and unconditionally’. The surrogate’s consent is ineffective if given less than six weeks after the birth – the same rule that applies if a woman gives up a child for adoption.

There is, however, a limited exception: consent is not required if the surrogate ‘cannot be found’. That power has always existed in the law, but until now has never been exercised.

What significance does the case have?

Mr Justice Baker made it clear that the power to waive consent should not be exercised lightly. Before making a parental order without the surrogate’s consent, the court must take into account the extent of efforts made to find her, and whether there is any other evidence indicating she would have been likely to have consented if found.

It is worth noting that this case does not involve a parental order being given against the surrogate’s wishes. Surrogate mothers have always under UK law had an unchallengeable right to change their mind. Whether this remains appropriate is another question but this is not what this case was about.

What to know if you are considering Indian surrogacy

The parents in this case did everything they should have done: they understood the legal processes they would need to follow, and had asked their clinic to help them comply with the requirements of UK law, which they promised to do. The fact that things went wrong was not their fault, and they were let down badly by their clinic.

While the case is, in our experience, very unusual, it does highlight that doing surrogacy in an unregulated jurisdiction is a risky business, and that parents place an enormous amount of trust in a clinic or agency a very long way away.

If you are considering Indian surrogacy, what can you do to protect yourselves?

1. Work with a reputable clinic which has a track record dealing with UK parents successfully and helping get the requisite consents.

2. Make sure that everyone understands from the outset that there will be papers for the surrogate (and her husband) to sign after the birth.

3. If possible, have direct and personal contact with your surrogate yourselves so that you are not entirely dependent on your clinic (although in practice most good clinics can make the process significantly easier by facilitating things for you).

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