UK surrogacy gone wrong

A recent case (1) made national headlines for being a 'do it yourself' surrogacy arrangement that ended in marital breakdown and legal chaos (reported in BioNews 746). While the media coverage made compelling reading, it did not fully address the complex issues raised in the case about the identity and best interests of the child, the law and policy governing the parental order regime or the implications of the complete initial lack of specialist legal advice.

This surrogacy case is a legal first in the UK because it deals with the legal and practical problems created by intended parents having missed the six month statutory deadline for a parental order application. The case makes clear that the six month deadline (prescribed in the Human Fertilisation and Embryology (HFE) Act 2008) is non-extendable and so granting a parental order was therefore not an option.

In the absence of a parental order, the child is effectively left with the wrong legal mother in this case. The surrogate mother unintentionally remains legal mother of the child, to the exclusion of the intended mother who is his social and psychological mother. The surrogate (and biological) mother also remains financially responsible for the child and continues to hold parental responsibility for him.

As such, the legal reality does not match the practical reality. Whilst the existing shared residence order secures the intended mother's care of the child and confers parental responsibility upon her for the duration of the order, the order is capable of variation or even discharge. Recognising this unsatisfactory position, the court also made the child a ward of court to help provide the intended mother with security and recognition of her status and regulate the exercise of parental responsibility by the adult parties.

Whilst assisted reproduction law intersects with family law in this case, the primacy of the HFE Act 2008 and its underlying policy is the determining factor. The case makes clear that the policy behind the non-extendable six month deadline for a parental order application is to ensure the speedy consensual regularisation of the legal status of surrogate and intended parents for surrogate-born children.

Justice Eleanor King stated in the case: 'Such a policy does not fit comfortably with extensions of time which inevitably result in the continued involvement over a protracted period of the surrogate mother in the lives of the commissioning couple and their child'. The policy's focus on legal regularisation of status seeks to ensure the protection of the surrogate born child's identity and that of the surrogate and intended parents. There is, therefore, good reason for the six month deadline.

Assisted reproduction law in the form of the HFE Act 2008 governs legal parenthood in this case because the child was conceived artificially. It is designed to provide clarity and certainty about legal status and it is not flexible, unlike mainstream family law. As a parental order and an adoption order were not viable legal options, being the only two legal mechanisms which can reassign legal parenthood, there was no obvious legal solution in this case. The court's exercise of its inherent jurisdiction is rarely used and it is a legal power of last resort. The fact that the court made the child a ward of court reflects the exceptional circumstances of this case.

This case is also exceptional because it is rare for surrogacy arrangements to fall into difficulty. The vast majority of surrogacy arrangements are successful because they are entered into with a great deal of thought and care. Although the intended parents in this case consulted lawyers during the pregnancy and after the birth, those lawyers were not skilled in assisted reproduction law. This resulted in the illegal drafting of a surrogacy agreement in contravention of the Surrogacy Arrangements Act 1985 and a failure to issue a parental order application within the six month deadline. The case makes clear that assisted reproduction law is a complex and specialist area and although linked to family law, it requires expert skill and understanding. It also signifies the importance of obtaining a parental order and of obtaining specialist legal advice.

This case highlights the unique nature of surrogacy. Although it demonstrates the difficulties that can arise in surrogacy arrangements, the court has upheld current law and policy. Whilst there are arguments for updating surrogacy law in the UK, this case reinforces the merits of preserving the statutory six month deadline for issuing a parental order application.

Louisa Ghevaert was solicitor for the father in the case of JP v LP & Ors 2014 EWHC 595 (Fam)