Court rules son of Marquess can inherit, despite surrogate birth

The High Court of England and Wales approved the Marquess of Bath's son, who was born via surrogacy, as a potential beneficiary of the family trusts.

Henry, the younger son of Ceawlin Thynn – the eighth Marquess of Bath – was born via gestational surrogacy in the USA after the Marchioness had serious health issues during her first pregnancy. Despite Henry being the genetic progeny of the couple, the Thynn family trust documents expressly retain the pre-1970 common-law meanings of terms pertaining to family relationships, such as 'child', 'grandchild' and 'issue', leading to uncertainty about Henry's rights as a beneficiary.

Judge Paul Matthews said in his ruling that he was deliberately asked not to address Henry's status. 'That would require consideration of matters which, so far as I am aware, have never been decided in English law. This is the status at common law of the child, the product of the egg of a married woman fertilised by her own husband but actually born of another woman, a surrogate mother, in whom the fertilised egg was implanted and brought to term.'

Rather, he limited the scope of the judgment to whether the trustees are able to exercise their power to add Henry to the group of beneficiaries.

The Judge noted the trustees do not plan to exercise the power immediately, pending advice on the tax implications of Henry having US citizenship by virtue of his birth location. 'A decision can then be taken at a later stage, in the light of appropriate advice, whether to exercise the power to add him,' he said.

The ruling specifically refers to Henry being the genetic child of the Marquess and Marchioness of Bath. As such, it does not address the rights of any potential trust beneficiaries who are adopted or conceived using donor gametes.

Jennifer Headon, head of the international family law team and legal director at Birketts LLP, told Today's Family Lawyer that the case highlights the tension between archaic trust structures and the realities of modern family formation.

'This case is a timely reminder that trust structures must evolve to keep pace with societal and medical advances in assisted reproductive technology,' she said.