Overseas Surrogacy Can Be a Legal Quagmire - Always Seek Expert Advice

Overseas surrogacy arrangements are an effective means of completing families. As a High Court ruling showed, however, they are notoriously replete with legal pitfalls and should never be entered into without first taking professional advice.

The case concerned a UK-resident couple who arranged for a surrogate mother in Georgia to carry their third child. Their gametes were used to create the embryo, but they failed to apply for a formal parental order following the birth. They had since divorced and the fact of their three-year-old son's surrogate birth only came to a local authority's attention after it launched care proceedings in respect of him.

The absence of a parental order meant that, in law, the surrogate mother continued to be recognised as the boy's parent although she was long since off the scene. His genetic mother had no parental rights in respect of him. The father's position was somewhat different in that, if the surrogate mother was unmarried when she gave birth, his paternity would be recognised under English law. With the local authority's support, the couple belatedly applied for a parental order.

Ruling on the matter, the Court noted that the exact circumstances of the surrogacy arrangement remained unclear. Emails between the genetic father and a surrogacy agency revealed a worrying disregard for the short- and long-term consequences and risks of what they were proposing. Neither of the genetic parents had provided information to the Court in a helpful, consistent or reliable way. Both of them said that they had been unaware of the need for a parental order.

The Court noted that an order had not been applied for within six months of the birth, as required by Section 54 of the Human Fertilisation and Embryology Act 2008. The evidence also indicated that payments made to the surrogate mother exceeded her reasonable expenses. Payment of the latter is all that the Act permits.

In making the order sought, however, the Court was prepared to waive the time limit and to retrospectively authorise the payments made. After much effort, and with the assistance of the Georgian Embassy, the surrogate mother had been tracked down and had given her written consent to the order.

The Court found that the order would serve the boy's lifelong welfare interests. It would extinguish his legal relationship with the surrogate mother, but that reflected the reality of his life. It would promote the formation of his identity and render his attachments to his genetic parents and older siblings legally secure.