Surrogacy agreements

Posted: 8th November 2016

Test tubesSurrogate births are an increasingly popular option for childless couples but they are replete with potential legal difficulties. In one highly unusual case, the refusal of a surrogate mother and her husband (the couple) to consent to parental orders in favour of the biological parents of twins left the children in legal limbo.

The consensual and altruistic surrogacy arrangement had been supervised by a reputable fertility clinic. With one crucial exception, all the legal requirements of the Human Fertilisation and Embryology Act 2008 had been met in order for the biological parents to be recognised as the twins’ legal parents.

The surrogate, aged 51, gave birth to twins conceived at a fertility clinic with the intended father's sperm and the intended mother's eggs. The parents had met the surrogate via an agency. The exception was that the couple refused to give their consent to that taking place and the High Court therefore had no power to grant parental orders.

Although they had no wish to play a part in the twins’ upbringing, the couple said that they were taking a principled stand due to their alleged poor treatment by the biological parents during the pregnancy, where the relationship broke down after the surrogate felt the biological parents did not show her enough consideration when concern were raised about her own health and well-being.

The upshot was that, although the twins were thriving in the care of their biological parents, with whom they had lived since the day after their birth, the couple, to whom they had no genetic link, remained their legal parents. In the absence of the couple’s consent, that position could only be changed if the biological parents adopted their own children.

In adjourning the case, the Court referred to the couple’s selfless role as surrogate parents and expressed the hope that they would have a change of heart. The twins’ lifelong emotional and psychological welfare depended on the couple granting the required consent. Only parental orders would accurately and properly reflect the children’s identity as surrogate-born children.