Child's welfare is ruled 'paramount' in surrogacy case
Progress Educational Trust16 December 2010
The UK's High Court has granted legal parenthood to the parents of a child born using a surrogate in the United States to allow them to keep the child in the country.
The couple had enlisted the help of an American woman from Illinois to act as a surrogate for their child. The child was born in the United States and allowed into the UK temporarily on an American passport and the couple sought a parental order to allow the child to remain in the UK.
In granting the order, Mr Justice Hedley said that although the parents had paid an unspecified sum to the surrogate - described by the parties as 'compensation' - which exceeded the threshold of 'reasonable expenses', all other requirements had been 'fully met'. The surrogate had acted of her own free will and one of the couple was the biological parent of the child.
In describing the existing rules on restricting payments as 'somewhat opaque', Mr Justice Hedley clarified: 'Welfare is not merely the court's first consideration, but becomes its paramount consideration', he said. 'The effect of that must be to weight the balance between public policy considerations and welfare decisively in favour of welfare'.
Although not unlawful in the UK, surrogacy arrangements are not enforceable by the courts. In the absence of a parental order conferring legal parental status, a surrogate is considered under law as the child's mother - even if both the commissioning parent's gametes are used and there is no genetic link between the surrogate and child.
The law also imposes restrictions on surrogacy arrangements made for financial gain. But the court emphasised: '...it will only be in the clearest case of the abuse of public policy that the court will be able to withhold a (parental) order if otherwise welfare considerations support its making'.
Some critics have suggested the decision may open the floodgates to British couples seeking surrogacy arrangements abroad but the law firm Gamble and Ghevaert LLP, acting for the couple, said the decision was 'a step towards alleviating the plight of vulnerable surrogate-born children'.
The firm, which specialises in fertility and parenting law, warned: 'While foreign surrogacy arrangements can seem attractive, great care needs to be taken over the legal issues. English law will not automatically recognise your status as the parents even if you are named on a foreign birth certificate and this can lead to difficulties over immigration and citizenship'.
Reproduced with permission from BioNews, an email and online sources of news, information and comment on assisted reproduction and genetics.