10 March 2014
ByAppeared in BioNews 745
A 'do it yourself' surrogacy agreement resulted in legal chaos after the intended parents' relationship broke down within a few months of the baby's birth, leaving the intended mother with no parental rights over the child.
The intended mother, JP, who is unable to conceive naturally after a hysterectomy, arranged for a close friend to be artificially inseminated at home with her husband's sperm. The child, CP, was born at Leicester Royal Infirmary in March 2010. The couple's relationship deteriorated after the birth and the intended mother left the family home with CP. She applied for a residency order to house the child and during these proceedings the couple decided to formalise legal parenthood.
Under UK law, the surrogate mother is regarded as the child's legal mother unless the child is subsequently adopted or a parental order is made. In this case, CP's father was the legal father as he had provided his sperm, but without a parental order the intended mother had no legal status and did not have parental responsibility for making important decisions relating to the child, such as medical treatment and schooling.
The intended mother's application for a parental order was made too late, however. The law requires a parental order to be made within six months of the child's birth and leaves no provision for a discretionary extension. The couple therefore went to the High Court to determine the issues arising from a lack of parental responsibility.
An adoption order was not suitable because if the intended mother sought to adopt CP, then the father's parental responsibility would be extinguished and as the couple had separated, they were not entitled to apply for a joint adoption order. Mrs Justice Eleanor King instead made a declaration that would 'provide the mother with security and recognition of her status', without jeopardising the role of the father as legal parent. The court held that CP would become a ward of the court, with the child's mother and father granted shared residence and with parental responsibility delegated jointly. It also said that the surrogate mother cannot exercise parental responsibility without leave of the court.
Justice King described the case as a 'cautionary tale' and warned against the dangers of informal surrogacy agreements outside regulated fertility clinics. 'The facts of this case stand as a valuable cautionary tale of the serious legal and practical difficulties which can arise where men or women, desperate for a child of their own, enter into informal surrogacy arrangements, often in the absence of any counselling or any specialist legal advice', she said.
The judge also said that the couple's solicitors had unwittingly committed a criminal offence when they charged for drafting a surrogacy agreement that was in breach of the Surrogacy Arrangements Act 1985.
Even though surrogacy agreements are not enforceable, the hospital had agreed to hand over the child to the intended parents only after seeing a surrogacy 'agreement'. The judge was did not know if Leicester Royal Infirmary had a surrogacy protocol in place at the time to deal with 'handover' and child welfare issues but said she hoped that such protocols will soon be in place in every Health Authority.