Court Report: Application for a parental order after international surrogacy
Coram Children's Legal Centre
Tuesday, January 30, 2018
The High Court ruled that a man who, with his male husband, had a child via a surrogate mother in the United States, could not be declared the legal parent of the toddler after the marriage had broken down.
Y v Z & Ors [2017] EWFC 60
The girl was born to an American surrogate mother in Missouri in September 2014 and had become the subject of litigation in London and the United States. Now three, she lives with her biological father in New York. His ex-husband in London sought a legal declaration that he was the girl's other parent. The judge refused to make that order because the man had not proved that he had a permanent home in the legal jurisdiction of England or Wales. Also the girl's genetic father had lived in the US for several years and had no meaningful ties to the UK. The current legal position for the girl as a matter of English law is that neither man has parental responsibility - or any legal status in relation to the girl. In accordance with section 33 Human Fertilisation and Embryology Act 2008, under English law the girl's biological mother is and will remain her legal parent, unless orders are made extinguishing that status.
Acknowledging the "legal complexities" of the case, the judge also criticised the couple, stating that: "In my judgment, [the men] have each abdicated their responsibilities to do this to the detriment of [the girl's] lifelong welfare needs, particularly those relating to her identity…Her legal status is precious and important, not something that can or should be treated irresponsibly as part of the inevitable maelstrom following a relationship breakdown." The judge was "heartened" that the couple had begun to express a willingness to mediate and explore ways of allowing the London resident to see the girl.
In the cases of surrogacy, at least one of the intended parents must have a biological connection to the child to be granted a parental order. The intended parents of the child can change who is regarded as the legal parents by obtaining a parental order. This ensures the parental rights are transferred from the surrogate to the intended parents. If a child is conceived using donor eggs and sperm, the intended parents must instead legally adopt the baby. Until the parental order is received, the surrogate is regarded as the child's legal parent, even if they are not genetically related.
- For more information on surrogacy and parental orders, visit www.childlawadvice.org.uk
