The Indiana Court of Appeals is currently tasked to determine who is the legal mother of a child conceived through IVF and carried by the intended mother's sister acting as a gestational surrogate. A County Court judge ruled that the birth mother is the legal mother. The intended biological mother is contesting this arguing that the law denies a woman the same right to establish parenthood as a man.
The legal arguments at issue in the Indiana case would be a non-starter under English law. English assisted reproduction law dictates that the surrogate mother is always the legal mother of the child at birth, irrespective of biology. English law on parenthood, as designed in 1990, was framed with donor conception in mind (on the premise that surrogacy would remain a rare and restricted practice) to ensure that the carrying mother and her husband would be the legal parents of the child at birth to the exclusion of either the egg or sperm donor. As a result, a surrogate mother (regardless of whether the egg used belongs to herself, the intended mother or a donor) will always be the legal mother at birth and this cannot be rebutted by DNA evidence. Instead, the intended parents must make a post-birth application to the English court for a parental order in order to reassign legal parenthood from the surrogate mother (and her husband if she is married) to themselves and extinguish all the legal rights and responsibilities of the surrogate (and her husband).
English surrogacy law therefore overrides natural paternity and maternity and instead requires intended parents to apply to court for an order recognising them as their surrogate-born child's legal parents. Whilst this prevents the sort of legal parentage dispute that has arisen in the case of the Indiana couple, for prospective parents there remains a risk that their chosen surrogate mother could change her mind and decide she wishes to keep the baby. Under English law, a surrogate mother cannot give valid consent to the grant of a parental order in favour of intended parents until a minimum of six weeks after the birth and the requirement for her consent is absolute. If she has a change of heart and refuses consent, a parental order cannot be made.
In recent years, there have only been two published cases where the English courts have had to grapple with a dispute between a surrogate mother and intended parents over legal parentage and care of a surrogate born child (despite media coverage which may suggest such difficult cases are more common). In both cases, having weighed up all of the fact-specific circumstances and the best interests of the child, the English court awarded day-to-day care to the intended parents. However, as the demand for surrogacy in the UK rises and the surrogacy and the assisted reproduction market matures, it is only a question of time before the English court will have to settle further difficult and challenging cases about the future care and legal parentage of surrogate born children.
Another recent high profile US surrogacy case involving Amy Kehoe and her husband Scott, is a further case illustrating just how difficult the emotional, ethical and legal landscape can become when a surrogacy arrangement goes wrong. Ms Kehoe and her husband, after a series of unsuccessful IVF attempts and an ectopic pregnancy and miscarriage, turned to surrogacy as a way of building their much wanted family. Using the Internet, Ms Kehoe picked an egg donor, an anonymous sperm donor, a surrogate and a fertility clinic - IVF Michigan - and twins were conceived. Ethan and Bridget were delivered on 28 July 2009. A month later, the twins were removed by court order from Ms Kehoe's and her husband's care under police supervision.
The Kehoe's surrogate, Ms Baker, who herself has four children, had previously delivered and handed over three other surrogate born children to their intended parents. In the face of public vilification, Ms Baker and her husband took the difficult decision to assume care of the twins when it came to light that Ms Kehoe had not been psychologically screened and Scott Kehoe gave evidence during a hearing to transfer guardianship that his wife had paranoid schizophrenia and her psychiatrist described the diagnosis as a 'psychotic disorder not otherwise specified'. Ms Kehoe admitted that before her diagnosis in 2001 she had self-medicated and had been arrested on charges of using cocaine and driving under the influence, although her psychiatrist also provided written evidence that she would be a good mother as her condition had been fully controlled for eight years and she had no current symptoms.
Ms Baker was so concerned that Ms Kehoe may relapse and not be able to care for the twins that she took legal steps to recover them. Under state law in Michigan, surrogacy contracts are unenforceable and Ms Baker was deemed to be the twins' legal mother at birth and the court ordered their return to her. After much soul searching, Ms Kehoe and her husband decided not to pursue the matter further citing their concerns about the lack of speed in the court process, constraints of the Michigan legal system and the legal costs they would inevitably incur.
Whilst there is no legal consistency amongst US states as to how to handle surrogacy arrangements and no international unification of surrogacy law, the law of England and Wales has adopted a careful middle ground approach. Surrogacy contracts remain unenforceable in England and Wales and the surrogate mother and her husband will be the legal parents until legal parenthood is reassigned to the intended parents by way of a post birth parental order. There is scope for disagreement, difficulty and dispute under English law, as in Indiana, and so any prospective parent contemplating surrogacy should take care to manage the legal issues to safeguard their and their surrogate born children's legal position.