Unregistered surrogate-born children creating 'legal timebomb'

27.05.2015

Parents’ failure 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”.

Estimated around 2,000 children a year are born to surrogate mothers – mostly overseas – before being handed over to British parents. According to the government’s child protection agency, Cafcass, last year 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 organized 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, 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 recognized 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 fertilized embryo to full term for the parents.

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 Fertilization and Embryology Act. The extra time is for parents to get organized 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 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.

Source: theguardian.com