Surrogacy law: court awards parenthood to deceased father following Indian surrogacy

July 12, 2011

The High Court has made an unprecedented order awarding parenthood to a deceased father of a baby boy born through surrogacy in India.  A couple, known only as Mr and Mrs A, entered into a surrogacy arrangement and their son was born in India on 12 April 2010.  The biological parents were Mr A and either Mrs A or an unknown donor.  However, under UK surrogacy law, the Indian surrogate and her husband were treated as the baby boy’s legal parents, and Mr and Mrs A therefore applied for a parental order to reassign parenthood and gain a UK birth certificate naming them as mother and father.

But Mr A tragically contracted liver cancer during the course of the proceedings and died, leaving the High Court to make a landmark decision to award parenthood to the mother and her deceased husband.

The case was complicated by the fact that only couples – and not single people – can apply for parental orders.  When the UK’s surrogacy laws were debated in 2008, Parliament decided that only couples should be able to commission surrogacy arrangements.  Parents who apply for parental orders following surrogacy must therefore either be married or living as partners in an enduring family relationship.

Leading fertility lawyer Natalie Gamble, who drafted an amendment to the law in 2008 (which was debated in Committee but rejected) which would have allowed applications from single parents, comments: “The case shows how dangerously outdated our surrogacy laws are.  Although Mrs Justice Theis was able to find a way around the law in this case because the father had died after issuing the application, what would have happened if either of the parents had died earlier, perhaps during the pregnancy?  This has always been an accident waiting to happen, and the restrictiveness of the current law is leaving children vulnerable and unprotected.”

Natalie, whose firm has dealt with many of the leading international surrogacy cases heard by the High Court in recent years including the first to ratify a foreign arrangement, goes on to say:  “The case demonstrates the continuing difficulties the courts are facing in dealing with surrogacy arrangements.  The High Court is repeatedly having to stretch the legislation in order to secure the status of vulnerable children born through surrogacy, and the emotional and financial cost of this for the family involved is significant.  We need a better system of law which caters for these kinds of eventualities, and gives clarity and certainty to ensure that children being born through surrogacy (and their parents and surrogates) are properly protected.”

The case is also the first published case to ratify an Indian surrogacy agreement in which more than expenses were paid to a surrogate mother, following a line of previous published cases ratifying commercial payments for surrogacy made to US and Ukrainian surrogate mothers.

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