It is widely known and accepted that being a parent brings with it a whole host of rights and responsibilities. But what if you had raised a child for over 20 years without having any legal obligation to do so and without having any rights as a parent? That is exactly the scenario in which Mr and Mrs X recently found themselves.
The couple, who lived in the UK entered into a surrogacy arrangement in the US back in 1998. Their surrogate (Mrs Z) became pregnant with an embryo created using gametes from Mr & Mrs X and gave birth to their son, Y, in the US. The couple obtained orders under US law which had the result of making Y the legal the child of Mr & Mrs X. This was exactly the outcome that Mr & Mrs X and Mrs Z had set out to achieve. With the security of knowing those orders were in place, they brought Y back to the UK. They presumed that matters were now concluded and that the laws in the UK were the same as in the US. They were wrong.
International surrogacy
To be treated as Y's parents in the UK, Mr and Mrs X ought to have obtained a Parental Order in the UK within 6 months of Y's birth. This remains the case where international surrogacy has taken place, even where the child is legally considered the child of the intended parents in the country where the surrogacy took place, and the child was ultimately born. In this case, notwithstanding the fact that under US law, Y was legally Mr and Mrs X's child, in the absence of the Parental Order under UK law, he was the child of Mrs Z and her husband.
Mr and Mrs X remained unaware of all of this until September 2021 when Mrs Z contacted them to advise them of their predicament. By this time, Y had reached adulthood and was in his 20s.
Parental orders for adults
Obtaining a Parental Order in the UK transfers parentage from the surrogate mother (and her spouse or civil partner if applicable) to the intended parents, in this case Mr and Mrs X. Upon hearing of their problem, Mr and Mrs X raised an application for a Parental Order in the English courts. Strictly speaking, the law only allows such applications to be made within 6 months of the child's birth. Clearly their application was more than 2 decades late. Y was now an adult. Neither Y, nor Mrs Z and her husband, opposed the application. All parties concerned wanted the Order to be granted. The court was persuaded to grant the order. The granting of the order merely put all concerned in the position they had always understood to be the legal position since Y's birth.
A landmark decision
The granting of the order is a landmark decision. When issuing its judgement, the court was clear that The Human Fertilisation and Embryology Act 2008 does not limit such applications only being made in relation to children. That would appear to make sense from a logical stance. After all, no matter what age a person attains, they will always be someone’s child. Whilst this case involved the English courts, the law is the same in Scotland. If a similar case was raised in Scotland, there is every likelihood that the court here would look to this judgement for guidance.
Any individual or couple undertaking or involved in surrogacy or assisted reproduction should take independent legal advice. Our family law specialists are able to advise you about the process and ensure that any agreements you enter into provide you with protection. We're here to help.
Contributor
Legal Director
