12 October 2012
Surrogacy offers hope of a much wanted family to many. It can bring immense happiness and joy. However, it can be a risky business and not all experiences are positive.
Your surrogate fails to give valid consent
A landmark legal case in the English High Court decided earlier this month, D and L (Minors) (Surrogacy) [2012], illustrates the problems that can happen when a surrogate mother fails to co-operate and relinquish her legal status for the child. In D and L, a UK gay couple applied for parental orders for their twin boys, conceived with the help of an Indian surrogate mother through a clinic in Hyderabad, India. They never met their Indian surrogate mother, dealing instead with the Indian clinic directly. The couple were unable to obtain signed forms from their Indian surrogate mother consenting to the grant of parental orders to enable them to become the twins’ legal parents under UK law. Their Indian clinic refused to help secure their surrogate’s written consent and the couple were unable to trace her themselves after the twins’ birth. All they received was a package in the post, containing a single sheet of paper with an obscene gesture on it.
The couple did everything they could to comply with UK legal requirements and they were badly let down by their clinic. Following complex court proceedings, the judge eventually granted them parental orders and dispensed with the requirement for the legal consent of their surrogate who could not be found. The judge did, however, issue a warning that future intended parents should learn the lesson that clear lines of communication with their surrogate are established to ensure they can obtain the necessary consent after the six week cooling off period post birth.
Your surrogate has a change of heart
Although rare, a surrogate mother sometimes has a change of heart and decides she wishes to keep the baby. This can happen for a variety of reasons and if a dispute arises, it creates difficult and challenging legal proceedings and the court will make a decision in the best interests of the child. As surrogacy agreements are not legally binding in the UK, this creates tension between the rights of surrogate mothers and intended parents.
The pregnancy is unsuccessful
Sadly, not all surrogate pregnancies result in a live birth. This can be devastating for all involved and it raises difficult issues. This can hit home even harder in circumstances where intended parents have already had a long and difficult fertility journey.
With so many risks, there is no substitute for obtaining expert legal advice, working with reputable clinics and agencies and maintaining direct links with the surrogate throughout the process.
Need a surrogacy lawyer or a family lawyer? If you would like to discuss your family building needs or you would like specialist fertility, surrogacy and family law advice and representation contact Louisa Ghevaert by email louisa@louisaghevaertassociates.co.uk or by telephone +44 (0)20 7965 8399.
