Mind the legal parent gap in surrogacy cases

Louisa Ghevaert was amongst the world's leading professionals of Assisted Reproductive Technology when she attended the International Academy of Matrimonial Lawyers (IAML) Surrogacy Symposium in London on 18 May 2015.

The symposium facilitated expert in-depth discussions amongst representatives from Europe, Australia, Hong Kong, India, Argentina, Mexico and the United States regarding the current status of the law and ethics surrounding surrogacy.

The Symposium brought together a rich variety of perspectives from lawyers, academics, the judiciary and the Children and Family Court Advisory and Support Services UK (CAFCASS).  

The Honourable Mrs Justice Theis delivered the opening address at the conference.  She said that the failure by intended parents to obtain parental orders to secure legal status of surrogate born children had created 'a ticking legal time bomb'.   There are estimates that as many as 1,000 – 2,000 children a year are born to surrogate mothers for intended parents in the UK (based on recent figures mentioned in parliamentary debates in autumn 2014).  However, there are no clear statistics about the numbers of children born to British intended parents in the UK or internationally. CAFCASS reported that only 241 applications were made for parental orders in respect of surrogate born children in 2014.  

Theis J highlighted the 'complex web' of legal rights and responsibilities and the legal problems that arise in cases where intended parents do not obtain parental orders for their surrogate born children. In the absence of a parental order, one or both intended parents do not have legal parenthood or parental responsibility for their surrogate born child as it remains with the surrogate mother (and her spouse). 

Theis J said that people entering into surrogacy arrangements needed to "mind the legal parent gap". The absence of a parental order meant that a surrogate born child might not inherit from his or her intended parents.  It could create legal difficulties if the intended parents separated or died or in situations where decisions needed to be made about the surrogate born child's medical care or in passport renewal situations.  Theis J added that the best interests of surrogate born children were served by having the legal certainty and clarity provided by a parental order.  In the absence of a parental order this had a psychological and practical impact on a surrogate born child's identity if he or she became aware that their intended parents were not their legal parents.

Theis J stated that there needed to be increased awareness of the legal consequences of children born through surrogacy arrangements.  As many anonymised legal judgments as possible need to go into the public domain so information was available and the process needed to be 'user friendly'. Theis J further stated that changes required fundamental legislative change.

Later in the day presentations were delivered by members of the American Bar Association (ABA) and the American Academy of Assisted Reproductive Technology Attorneys (AAARTA) about ways legal changes to surrogacy could be achieved on an international basis. 

Louisa Ghevaert, who represented the first family in an international commercial parental order case in 2008 with Natalie Gamble, stated:

"Surrogacy law and policy around the world is evolving. It is fast moving and the lack of international harmonisation of surrogacy law creates complex legal issues for intended parents, surrogates and their families. The Surrogacy Symposium provided an excellent opportunity to debate these important issues and look at ways to tackle the legal challenges faced around the world by families created through Assisted Reproductive Technology.  Surrogacy can be a daunting and complex process, both emotionally and legally.  Intended parents may have a history of infertility and may already have spent significant periods of time and substantial sums of money on fertility treatment. Any legal changes need to be easy to navigate to avoid the process being driven underground and to safeguard the welfare of children, intended parents and surrogate mothers."

Louisa is a leading UK expert in fertility, surrogacy and family law. Her award winning legal practice includes: international and UK surrogacy, inter-country adoption, children and family disputes, co-parenting, donor conception, fertility treatment law, posthumous conception, divorce and finances, cohabitation and family law.

For more information about UK surrogacy law please contact Louisa Ghevaert by email louisa.ghevaert@michelmores.com or telephone  +44 (0)207 7886382.