Court to decide 'legitimacy' of surrogate-born child in inheritance case

The Marquess of Bath is supporting a court application to ensure inheritance rights for his son born via surrogacy.

The eighth Marquess of Bath, Ceawlin Thynn, and his wife Emma have two sons, the second of whom was born via surrogate. Because of this, it was questioned whether he would be able to benefit from the family trusts, as he may not be considered 'legitimate' for the purposes of inheritance. Therefore, the trustees applied for court approval to exercise a 'power of advancement' to enable the Marquess to potentially include his second son, and any of his son's future children, as beneficiaries of the trusts.

'The [Marquess] and his wife consider it would be unfair and unfortunate if their second son and his issue were excluded from benefit,' His Honour Judge Matthews said in his judgment, ruling on the procedural question of whether to appoint a legal representative in the claim to represent the beneficiaries of the trusts.

The couple chose surrogacy for their second child after the Marchioness was diagnosed with a dangerous condition during her first pregnancy, making carrying more children potentially life-threatening. The boys are now aged eleven and nine, and are both the genetic children of the Marquis and Marchioness.

The trusts specify that pre-1970 common law meanings of descriptions of beneficiaries, including 'child', 'grandchild' and 'issue', should be retained for the purposes of inheritance. According to the 1997 case, Re M (Child Support Act: Parentage), any child conceived via surrogacy would not be considered 'legitimate' under common law.

At this stage, the application only concerns the question of whether the Marquess has the power to add his son as a beneficiary, and there is no intention for this power to be exercised as yet.

The judge added that the reason for this was 'to avoid any problems with US tax, as he was born in America to an American surrogate mother. A decision can then be taken at a later stage, in the light of appropriate advice, whether to exercise the power to add him.'

The judge ruled on the procedural question of whether to appoint a legal representative to act on behalf of various other beneficiaries, which he deemed appropriate.

He concluded that the claimants' suggested independent solicitor should be added as a second defendant to the claim 'to represent the interests of those members of the class of beneficiaries who would be potentially prejudiced by the implementation of the trustees' decision, so as to be able to provide an appropriate argument against such implementation.'