Case emphasises importance of specialist legal advice before embarking upon surrogacy arrangements
As the judge involved explained, a recent Family Court case provides an important cautionary reminder of the need for those embarking on surrogacy arrangements, particularly those that cross a number of different jurisdictions, to carefully consider, in advance, the arrangements, consequences and implications of that arrangement.
The case concerned an application for a parental order (i.e. an order giving full legal parenthood of the child) by a same-sex couple, following a foreign surrogacy arrangement. The arrangement ran into difficulties when the couple ended up having little or no control as to where the child was born. Unfortunately, she was born in a jurisdiction where the couple were informed that surrogacy arrangements that involved same sex relationships are not permitted.
Hearing the application, highly experienced judge Mrs Justice Theis DBE said this:
“The message needs to go out loud and clear that when intended parents embark on these surrogacy arrangements they need to ensure there is clarity about what is proposed, that the written [surrogacy] agreement clearly provides for the essential arrangements and the relevant legal framework is understood at each stage, including
(1) Whether any classes of person are excluded from being intended parents in a surrogacy arrangement in that jurisdiction, such as in this case same sex couples.
(2) What jurisdiction the embryo transfer takes place in.
(3) What the arrangements are for where the surrogate lives during the pregnancy and the applicable legal framework.
(4) What the arrangements are and the applicable legal framework for the child’s birth and registering of the birth. For example, it is clear where the child is going to be born.
(5) What steps can or should be taken in the jurisdiction where the child is born to secure the intended parents legal relationship with the child in that jurisdiction.”
She went on:
“There are a number of cases where, very surprisingly, such basic information is simply not known by the intended parents, or they have been willing to take considerable risks to fulfil their wish to be parents. Whilst that wish is acknowledged it should not be at the expense of placing the much wanted yet to be born child at risk of harm. The need to take expert legal advice before entering into these arrangements cannot be emphasised strongly enough.”
Helpfully, the lawyers in the case prepared a list of key issues any person considering embarking on a surrogacy arrangement, particularly one that involves the surrogate coming from and/or the child being born in a foreign jurisdiction, should consider before they enter in any surrogacy arrangement. The list includes such things as finding out the relevant legal framework in the country where the surrogacy arrangement is due to take place, checking that the surrogate understands the agreement, and sorting out arrangements for the child to travel to the United Kingdom.
As Mrs Justice Theis stated, this list emphasises the importance for intended parents to seek legal advice from a solicitor specialising in surrogacy before embarking on any such arrangements, especially if it involves another jurisdiction.
As to the case itself, there was a happy ending, as Mrs Justice Theis found herself able to make a parental order.
You can read the full judgment here.
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