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Couple win battle to become legal parents of adult son born through surrogacy in the US

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A family court judge has ruled that a couple whose adult son who was born through surrogacy in the US are his legal parents under English law, in what has been described as a ‘groundbreaking’ and ‘important victory’.

Solicitor Jade Quirke, based with law firm Russell-Cooke, said Mrs Justice Theis’s ruling is the first of its kind, adding that no such ruling had been made in relation to an adult child before. 

In a written ruling published online after a private family court hearing in London, Mrs Justice Theis said the people involved could not be identified in media reports of the case. 

Referring to the couple as Mr and Mrs X and to their son as Y, the judge said the couple’s son was born in America in 1998 after they made a surrogacy arrangement there. 

The couple visited the surrogate mother in the US during her pregnancy and returned to the UK when their son was a few days old.

However, the couple only realised last year that they were only their son’s legal parents under US law, and made an application for a parental order which would make them their son’s legal parents in Britain. 

Mrs Justice Theis has ruled that a couple whose adult son who was born through surrogacy in the US are his legal parents under English law

Mrs Justice Theis has ruled that a couple whose adult son who was born through surrogacy in the US are his legal parents under English law

What are the legal rights of parents and surrogates?

Surrogacy is legal in the UK, but if you make a surrogacy agreement it cannot be enforced by the law.

If a person uses a surrogate, they will be the child’s legal parent at birth.

If the surrogate is married or in a civil partnership, their spouse or civil partner will be the child’s second parent at birth, unless they did not give their permission.

Legal parenthood can be transferred by parental order or adoption after the child is born.

If there is disagreement about who the child’s legal parents should be, the courts will make a decision based on the best interests of the child.

The intended parents and surrogate can record how they want the arrangement to work in a surrogacy agreement.

Surrogacy agreements are not enforceable by UK law, even if you have a signed document with your surrogate and have paid their expenses.

Source: Gov.uk 

Mrs Justice Theis said indicated the surrogate mother had not objected to the order, but it was first time a judge based in England or Wales had been asked to consider making a parental order for a ‘person who is now an adult’.

The judge said she had therefore had to consider the provisions of 2008 the Human Fertilisation and Embryology Act. 

Miss Quirke said many people could be in a similar position to the couple.

‘This ruling is an important victory for parents of children born through surrogacy, especially in cases that have taken place overseas historically and where legal parenthood has not been resolved here in the UK,’ she said.

‘The brave decision of Mr and Mrs X to proceed with a parental order application for their child, despite the fact no such order had ever been granted in relation to an adult child, has yielded a ground-breaking result which has come as an enormous relief to their family.

‘The hope is that this ruling will raise greater awareness of the importance of resolving legal parenthood following historic surrogacy and give confidence and encouragement to others who are in a similar position to Mr and Mrs X, to urgently consider their legal position to ensure that their family unit is legally secure.

‘In all likelihood there are many parents in the UK who for one reason or another have not secured parental orders for their children over the years.

‘What this ruling shows is that the law can accommodate differences in parents’ circumstances, in order to put the welfare and security of children and families first.’

According to gov.uk, if you make a surrogacy agreement it cannot be enforced by the law.

If a person uses a surrogate, they will be the child’s legal parent at birth. If the surrogate is married or in a civil partnership, their spouse or civil partner will be the child’s second parent at birth, unless they did not give their permission.

Legal parenthood can be transferred by parental order or adoption after the child is born.

In a written ruling published online after a private family court hearing in London, Mrs Justice Theis said the people involved could not be identified in media reports of the case (pictured, file image of the Central Family Court in London)

In a written ruling published online after a private family court hearing in London, Mrs Justice Theis said the people involved could not be identified in media reports of the case (pictured, file image of the Central Family Court in London)

When a child is born through surrogacy, the intended parents should apply to the family court for a parental order. The parental order transfers legal parenthood from the surrogate (and her spouse or civil partner) to the IP(s). It can only be made with the surrogate’s consent.

The parental order process takes place after birth and involves the family court, and a court-appointed social worker. This provides a valuable safeguard for the best interests of the child. 

Parental order applications are typically heard by magistrates. They will be heard by a High Court judge if the child is born overseas or there are questions over whether the parental order criteria are met.

The vast majority of surrogacy cases in England and Wales are straightforward and it is rare that a parental order to transfer parenthood to the IP(s) is not considered in the best interests of the child.

If there is disagreement about who the child’s legal parents should be, the courts will make a decision based on the best interests of the child.

The intended parents and surrogate can record how they want the arrangement to work in a surrogacy agreement.

Surrogacy agreements are not enforceable by UK law, even if you have a signed document with your surrogate and have paid their expenses.

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