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Couple Deemed Legal Parents Of Adult Son Under English Law, Following Surrogacy In The US.

Ground-Breaking Victory In The Family Courts For People With Surrogate Children.

By Grace Mullis, Family Law solicitor at Irwin Mitchell

For the first time in England and Wales, the family courts considered making a parental order for a person who is now an adult (early 20’s).

In the recent case, “Mr and Mrs X”, made a surrogacy agreement in the US, and their son “Y” was born in 1998. It was only last year that the couple realised that they were not in fact considered their son’s legal parents in England and Wales, and made an application to the family courts for a Parental Order. Mrs Justice Theis ruled that Mr and Mrs X were the legal parents of Y, and granted the parental order.

Surrogacy agreements are not enforceable by UK law and therefore many couples turn to overseas, where they are able to sign a document which sets out the terms of the surrogacy arrangement and the expenses to be paid to the surrogate. Surrogacy agreements are widely used and regulated in some states in the US, where Mr and Mrs X had made their agreement.

Where a child is born through surrogacy, even when overseas, in England and Wales the surrogate is considered the child’s legal parent at birth. The intended parents (Mr and Mrs X) would therefore need to apply to the family courts for a parental order. This can only be granted with the surrogate’s consent, and the court will consider what is in the best interests of the child when considering the application.

Mrs Justice Theis’ decision does not only offer hope to people with surrogate children whom may also have not already obtained parental orders, but also highlights the importance of couples seeking legal advice in the UK when entering into surrogacy agreements. It is so important that couples are aware of their legal parental status, and are not faced with the shock which Mr and Mrs X faced last year. Whether an intended parent has a parental order in place or not has a significant impact on a parents’ ability to make decisions on behalf of a child (such as medical decisions or schooling), issues of identity, inheritance and more.

Before embarking on a surrogacy journey, it’s important for everyone involved to take specialist legal advice, so that they understand their rights and responsibilities, and are able to make fully informed decisions. At Irwin Mitchell, our expert family lawyers are always on hand ready to offer specialist fertility law advice.