NGA advises Corrie on surrogacy

We have been working with Coronation Street on their surrogacy storyline (the first in a mainstream UK soap) which has come to a head this week, with surrogate Tina changing her mind about handing over Gary and Izzy’s baby.

We have been helping Corrie to get the law right, but what would happen in reality?  Do surrogates often change their minds, and what is the legal position if they do, particularly if it is not their biological child?

UK law says that the surrogate is the legal mother, whether or not she is not the biological mother.  The intended parents can apply to court for a new birth certificate after the birth - a process which ends the surrogate’s motherhood – but only with her consent.  If she withholds it, the surrogate remains the legal mother, although the family court can order that the child should live with the intended parents anyway.

But the legal position rarely fits with what happens on the ground – in reality, surrogacy arrangements go wrong surprisingly rarely.  The structure of the law would make you think that surrogates change their minds often, and need to have their rights protected.  In reality, the picture is very different.  There have now been over 1,000 parental orders granted in the UK (surrogacy cases with no dispute) and only 2 reported cases where a surrogate has sought to keep the baby.  In both cases, the surrogate was also the biological mother, and in only one of them did she win her case.

So what would happen if a gestational surrogate like Tina (who is not biologically connected) wanted to keep a surrogate baby?  The answer is that we just don’t know because it has never yet happened in the UK.

And what will happen with Tina, Gary and Izzy?  Well, we know, but we aren’t allowed to tell you…

There is more information about surrogacy law on our website.  You can also read what Natalie thinks about whether surrogates should still have an absolute right to change their minds under UK law here.

Surrogacy overseas: new immigration guidance for UK parents

The Foreign and Commonwealth Office has published updated guidance on the immigration procedures for UK parents who have children born through surrogacy abroad.  The rules have not been changed, but they are now set out much more clearly than before.  The new guidance also contains helpful practical information about what documents need to be included in applications.

If a child is born through surrogacy abroad, UK law applies its own rules on parentage irrespective of the legal position in the birth country.  The rules trip up many parents since, even if their child’s foreign birth certificate or court order records them as the legal parents, the child will not automatically be entitled to a British passport.  British nationality law treats the surrogate (and if she is married her husband) as the legal parents – irrespective of biology.  The child may therefore inherit British nationality from his or her parents, but may not, depending on the circumstances.  If the child is not British, there are discretionary procedures to follow to get the documentation needed to bring the child into the UK (to have the child registered as a British citizen, or to obtain an entry clearance visa).  The new guidance sets out these procedures much more clearly.

These rules apply to children born through surrogacy anywhere in the world, most commonly India, the Ukraine and the USA.  Typically the fastest route home to the UK is from the USA (although to avoid breaching immigration control parents need more than a US passport to travel).

There is more information about international surrogacy law on our website, or you can contact us for advice on your personal situation.  We are the UK’s most experienced surrogacy lawyers, having dealt with virtually all the international surrogacy cases which have made the law in the UK, including the very first.  We have also long campaigned for better immigration laws for surrogacy, helping create the policy which has allowed entry clearance to be given on a discretionary basis, and in 2010 winning a change to the legislation which allows British nationality to be conferred automatically on children awarded a parental order.

High Court declares lesbian non birth mother ''not a parent' due to errors at fertility clinic

In a recently published case a High Court Judge has declared a lesbian non birth mother as ‘not a parent’ due to errors at a fertility clinic. The case involved a lesbian couple who had been in a relationship for 13 years and had started a family together at a licensed fertility clinic, with the birth mother conceiving in 2009. The couple had  waited for the changes in the law which allow a non birth mother to become a second parent by signing the necessary consent forms, to come into force before conception. However, now the couple have separated a dispute has arisen over whether the non birth mother should have contact with the children (twin boys).

The birth mother raised the question as to whether the non birth mother could be considered a legal parent due to apparent errors made in completing and submitting the consent forms and the procedures followed by the fertility clinic in question. The court was asked to determine on this preliminary issue before hearing the application for contact and has now ruled in favour of the birth mother.

Mr Justice Cobb very carefully considered the provisions under the HFEA 1990 and 2008 and the guidance given to fertility clinics. In the circumstances of the case it transpired that the consent to legal parentage for the non birth mother was not provided prior to conception and therefore she could not be considered a legal parent. In addition it was found that even if the necessary forms had been completed correctly the clinic had erred in not following the correct procedures, including failing to provide adequate counselling.

Although the court has ruled in favour of the birth mother in this instance the non birth mother has been given permission to continue her application for contact with the children.

It is a decision that will no doubt be of interest to both same sex parents and fertility clinics alike. It will serve as an important reminder to fertility clinics to ensure their procedures when treating couples meet the strict statutory requirements. It also highlights the conflict that can arise between couples when a relationship breaks down and the considerable heartache involved.

Richard has written an article on the decision for Bionews which you can read here