High Court Judge grants surrogacy parental order in favour of a deceased parent

11 July 2011

The latest international surrogacy case to be published by the English High Court, namely A and A v P, P and B [2011] once again draws into focus the legal difficulties associated with surrogacy law in the UK.  Critically in this case, the English court had for the first time to determine the legal position of a vulnerable surrogate baby, born abroad to an Indian surrogate mother, in circumstances where the intended father died during the legal proceedings for a parental order.

A married couple entered into a surrogacy arrangement with a clinic in India.  Following the birth in April 2010, the baby boy was placed in the care of the married intended parents who then applied to the English court for a parental order to secure their legal position as parents in the UK.  The couple issued their application on 8 July 2010 and the applicant father tragically died of liver cancer aged 34 years on 19 December 2010, prior to the making of an order.  Subsequently granting a parental order, Mrs Justice Theis relied on the United Nations Convention of the Rights of the Child, specifically Article 8 which required the State to protect the child’s right to an identity and a legal relationship with his parents, and because no other order would have had the same transformative legal effect as a parental order.

This latest judgment does not, however, pave the way for single commissioning parents to apply for parental orders.  Single people still remain prohibited from applying for a parental order under requirements of s54 of the Human Fertilisation and Embryology Act 2008.

Mrs Justice Theis also emphasised “..the legal difficulties that overseas surrogacy agreements can create, the need to take advice from those skilled in this area as to the problems that may arise, how they can be addressed and the need to consider applying for a parental order to secure the legal status of the child”.

Need an expert surrogacy lawyer or fertility and family lawyer? If you would like to discuss your family building needs or you would like specialist fertility and family law advice contact Louisa Ghevaert by email  or by telephone +44 (0)20 7965 8399.

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