Dead father granted parenthood in surrogacy case

The UK’s High Court has awarded legal parenthood to a deceased father of a child born through a surrogacy arrangement in India.

Mr A and Mrs A, who cannot be named for legal reasons, sought an order granting legal parenthood and to be recognised as the child’s mother and father on the birth certificate. Sadly, Mr A was diagnosed with cancer and died five months after the application was submitted, before an order was granted. The court had to decide on whether to grant a parental order, which in the UK can only be applied for by couples, to Mrs A and her deceased husband.

The baby boy, known as B, was born in April last year to an Indian surrogate. It was clear Mr A, who provided his sperm for the procedure, was the biological father, although there remained uncertainty over whether Mrs A or an anonymous donor was the biological mother – as both women’s fertilised eggs were implanted. However, under UK law it was the surrogate and her husband who were recognised as the child’s parents, not Mr and Mrs A.

In granting the order, Mrs Justice Theis said the court’s paramount consideration was B’s welfare. She explained it was at the discretion of the court to make an order, so long as the requirements for parenting orders set out in Section 54 of the Human Fertilisation and Embryology (HFE) Act 2008 were met. ‘The evidence clearly demonstrates that B’s welfare needs are met by the making of a parental order, which is the order I shall make’, she ruled.

In the UK only couples can apply for parenting orders and the court had to consider whether the word ‘applicants’ in the HFE Act 2008 could be construed so as to require two people to make the application but not require that there be two living applicants at the time of the making of the order. The court heard how Parliament did not envisage a situation where one of the applicants had died before an order could be granted.

Commenting on the case, fertility lawyer Natalie Gamble said: ‘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’.

‘The case shows how dangerously outdated our surrogacy laws are… This has always been an accident waiting to happen, and the restrictiveness of the current law is leaving children vulnerable and unprotected’, she added, asking: ‘What would have happened if either of the parents had died earlier, perhaps during the pregnancy?’

Mrs Justice Theis sought to emphasise the legal difficulties overseas surrogacy arrangements can create. ‘Although the circumstances that have arisen in this case are extremely rare, they bring into sharp focus again, the difficulties that can arise in international surrogacy arrangements’, she said.

The court also considered the issue of payments to surrogates, which, if more than expenses reasonably incurred, are prohibited in the UK unless authorised by the courts. Mrs Justice Theis said it was ‘more likely than not’ that the payment made by Mr and Mrs A to the surrogate exceeded this threshold but nonetheless ratified the payment.

England and Wales High Court (Family Division) Decisions | 08 July 2011

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