The failure by parents to register the majority of children born through surrogacy agreements has created “a ticking legal timebomb”, a high court judge has said.
Addressing a conference on the rapid expansion in the number of surrogate births, Dame Lucy Theis said that without a court-sanctioned parental order and improved international legal frameworks children could end up “stateless and parentless”.
It is estimated that as many as 2,000 children a year are born to surrogate mothers – mostly overseas – before being handed over to British parents. Last year, however, according to the government’s child protection agency, Cafcass, only 241 applications were made for parental orders.
“My concern is about the people who are not making applications,” Theis, a judge in the family division, told a conference organised by the International Academy of Matrimonial Lawyers and the London law firm Charles Russell Speechlys.
“There’s a ticking legal timebomb that might arise later on through [the parents’] deaths, testamentary [inheritance] issues and through parents splitting up – or even simply if passports need to be renewed.”
Unless the child’s status was registered, she added, it might not inherit from its new parents and would retain a claim on the estate of the birth mother – even if she was abroad. A parental order extinguishes the rights and responsibilities of the surrogate birth mother, who would otherwise be recognised in law as the true parent.
About 50 or 60 surrogate babies are born to birth mothers in the UK but far more are born abroad to host mothers, who are usually paid about £15,000 for bearing the child. In most cases the birth mother is not the genetic mother but carries a fertilised embryo to full term for the parents.
“The best interests of the child born to these arrangements is to have legal certainty and clarity,” Theis said. “If no order is made, there is the psychological impact of [subsequently] discovering that the mother is not their [birth] mother. And there’s practical issues in terms of inheritance and other financial matters. The court’s paramount consideration is the child’s long-term welfare needs.”
Every application made so far for a parental order has been granted. There is a six-month time limit on registering surrogate births specified in the Human Fertilisation and Embryology Act. The extra time is for parents to get organised following a more complex birth process. However, in a recent decision the family court accepted reasons given for the delay and accepted an application dating back nearly two years.
Some cases raise complex legal problems. In one surrogacy arrangement, Theis explained, a “mother offered to step in. [She] became mother to her son’s child through embryo transfer so the child has been born as [the father’s] brother.”
In parental order cases, the surrogate mother and her partner are usually recorded as the respondents but rarely take any active part in the proceedings.
In the short term, Theis said, the judges are keen to publicise judgments – in anonymised forms – to boost public awareness of the need to register.
“In the longer term,” she added, “formal change can only be brought about by primary legislation. An international instrument is being canvassed. The benefits would be minimum standards to ensure that the child’s rights are portable between jurisdictions and to avoid children being left stateless and parentless. [In the UK] we need legislative reform to provide a legally supported framework.”
Natalie Gamble, a solicitor who specialises in fertility and family cases, represented the first family in a parental order case in 2008. One common problem, she said, was the delay that parents face returning to the UK with their new baby. “We had one case where parents were stuck in India for 10 months before they could get back home,” she recalled. “The father couldn’t see his new son because his passport had been taken.”
Craig Lind, a law lecturer at Sussex University, said the reason most births were not registered was unknown. “People don’t like telling others how they are having their babies,” he suggested. “They may want to keep the birth mother at a distance. Once you come back into this country, you think it’s all done.”
Last October, in a parliamentary debate, the former Conservative MP for Erewash, Jessica Lee, called for fresh legislation to update the law to help intended parents and surrogates, written agreements for those going into surrogacy and an international legal framework. Jane Ellison, health minister, said she would consider requests to change the law.
