National Surrogacy Week

Today marks that start of National Surrogacy Week, an event raising awareness of UK surrogacy.

This year’s theme is children born through UK surrogacy and their stories, so it seems fitting to consider a recent case, H v UK, heard in the European Court of Human Rights relating to a six year old British girl born through surrogacy.

Before we look at this case in more detail, here’s a quick summary of surrogacy law in this country:

• The surrogate will always be the child’s legal mother at the time of birth
• If she’s married or in a civil partnership at the time of conception, then her spouse or partner will be the other legal parent (although there are exceptions)  
• The intended parent(s) can then apply for a Parental Order, to transfer legal parenthood to them.
• As part of this process, the surrogate and her spouse must provide their consent.

In this case, a same sex male couple (the intended parents), entered into a surrogacy arrangement with a married couple (the surrogate and her husband). They conceived using an anonymous donor’s egg and the sperm of one of the intended fathers. Sadly, relations broke down, and the surrogate and her husband did not inform the intended parents about the birth until after the birth had been registered. They also refused to consent to the parental order being made.  

The Family Court in England decided that the child would live with the intended parents and have regular contact with the surrogate and her husband. All four adults would share parental responsibility for the child, which is the right and responsibility to make important decisions in relation to her upbringing. However, the surrogate and her husband would continue to be the child’s legal parents and the birth certificate, which named the surrogate and her husband as mother and father, would not be changed.

Lawyers on behalf of the child took her case to the European Court of Human Rights, and argued that her biological father should be named as her father on her birth certificate, and that failing to do so was a breach of her human rights.  They said that this violated her right to identity and denied her the social and emotional benefits of having him recognised as a legal parent. Whilst the intended parents have parental responsibility, this comes to an end  when she reaches 18 and does not therefore have the same long-term certainty as legal parenthood.

The application was refused, and the court found that  even though the biological father was not named on her birth certificate, the child would not be wholly deprived of a legal relationship with him.

This case highlights two important points:-

• It is a stark reminder that surrogacy arrangements in the UK can breakdown. Whilst this is thankfully very rare, problems with the surrogacy relationship bring a huge amount of uncertainty and anxiety for everyone involved. It’s therefore vital that everyone seeks specialist independent legal advice before conception takes place to ensure that they are aware of the legal position and everyone’s rights, responsibilities and expectations.
• Reform to surrogacy law in England and Wales is long overdue. The Law Commission is currently undertaking a review in this respect and final recommendations for reform are expected to be published in the autumn this year, so watch this space.

Read more about Irwin Mitchell's expertise in surrogacy.