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My late father

15 August 11

Parenthood has been awarded to a deceased father in a case that highlights difficulties with the law on surrogacy

by Caroline Henderson

The English High Court has, for the first time, awarded parenthood to a deceased father.

In A and A v P, P and B [2011] EWHC 1738 (Fam) the High Court required to consider the legal position of a baby boy, born in India to a surrogate mother, in an application for a parental order by a married couple, where tragically the father had died from liver cancer before the hearing.

Mr and Mrs A, married and in their 30s, entered into a surrogacy arrangement with a clinic in India. The child was born in April 2010 and placed with Mr and Mrs A, in India and then in the UK. All the embryos implanted in the surrogate mother had been fertilised with Mr A’s sperm, but not all the eggs used were the genetic material of Mrs A. Mr A was therefore absolutely the biological father but it was uncertain whether Mrs A was the biological mother.

After returning to England the couple jointly submitted an application for a parental order in terms of s 54 of the Human Fertilisation and Embryology Act 2008 to secure their position as legal parents in the UK. Five months later, the father died. The issue for Mrs Justice Theis was whether to grant the order although the Act does not permit applications by single persons.

Securing status

The judge relied on the Human Rights Act 1998 and the United Nations Convention on the Rights of the Child, specifically article 8, which requires the state to protect the child’s right to an identity and a legal relationship with his parents. In addition, there was no other order or combination of court orders which would have had the same transformative legal effect. It was therefore in the child’s best interests that a parental order be made.

Under Scots law, until the grant of a parental order, the Indian surrogate and her husband would be treated as the baby’s legal parents. Only following the grant of an order to reassign parenthood could an entry be made in the Parental Order Register and an extract issued, naming the commissioning parents as the mother and father of the child.

This landmark ruling does not pave the way for a single commissioning parent to apply for a parental order under the 2008 Act. Only couples continue to be able to apply, and at least one of the couple must have a biological connection with the child. But suppose the application had not been issued to the court prior to the death of the biological father? Mrs A, to secure her legal status and that of the child, might have required to adopt the child who might, in fact, turn out to be her own biological child. This would also have had a bearing on the child’s legal status vis-à-vis his father: adoption by Mrs A would not have recognised such status.

Legal minefield

What if only donor eggs had been used and no application made prior to Mr A’s death? Mrs A would have had no genetic connection with the child and would not have been able to apply singly for a parental order, leaving the Indian surrogate and her husband as the child’s legal parents under UK law. In India, however, that parental status had already been relinquished through the surrogacy arrangement, potentially leaving the child both “stateless” and parentless.

Consider also the implications had both Mr and Mrs A died. Applying Mrs Justice Theis’s reasoning, had at least the application been made prior to death, it is likely that the order would still have been granted. Had no application been made (and bear in mind that a child requires to have its home with the intended parents in the UK for six weeks before application is competent), the Indian surrogate and her husband would remain the legal parents according to UK law. This would deny the child the legal and social benefits which flow from having a relationship with both parents recognised by law.

It may be useful to note that had the surrogate not been married, then although under UK law the surrogate mother would still be treated as the legal mother at the child’s birth, Mr A would have been regarded as the legal (as well as biological) father.

The High Court stretched the legislation in this case in order to secure the welfare of the child. However, it shows the legal difficulties surrogacy agreements, particularly overseas agreements, can create. The court highlighted “the need to take advice from those skilled in this area as to the problems that may arise, how they can be addressed and the need to consider applying for a parental order in order to secure the legal status of the child”.

 

Caroline Henderson, senior solicitor, Family Law Unit, Maclay Murray & Spens LLP

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