Woman gives birth to son's child - the complex world of surrogacy

Posted: 12/03/2015

The recent case of Re B v C (Surrogacy:Adoption) [2015] EWFC 17 highlights the unusual circumstances that modern medicine can bring about - a mother giving birth to her son’s child - as well as the complexities and some of the absurdities of the law surrounding adoption and surrogacy.

The case involved B, who for ease we will call Bernard (not his real name). Bernard is in his mid-20s but had wanted to be a father for some time. However, he was not in a relationship and therefore had sought advice from specialist fertility lawyers and licensed fertility clinics about surrogacy. His family and close friends were aware he was considering surrogacy as an option and one of his relatives volunteered to be a surrogate.

However, Bernard’s relative had to withdraw due to her own medical reasons. At this point Bernard’s mother, C (who we will call Catherine, again not her real name) suggested she could act as a surrogate ie be the gestational mother. Catherine had the full support of her husband D (David for our purposes). Bernard, Catherine and David all received counselling and went to a licensed fertility clinic. An embryo was created using an anonymous donor egg and Bernard’s sperm before being transferred to Catherine who carried the baby, A, who we will call Adam, to full term.

Adam has lived with Bernard since his birth but Catherine and David are recorded as his parents on his birth certificate. Bernard applied for adoption and the judge made a child arrangements order which gave Bernard parental responsibility for Adam and also confirmed the arrangement of Adam living with Bernard.

The Alice in Wonderland nature of the law surrounding this area now came into full force. As Catherine carried Adam and David consented to this and is married to Catherine, they, rather than Bernard, are seen as the legal parents of Adam. For Bernard to have had a parental order made in his favour to be a legal parent of Adam, he would have to be, among other factors, married, in a civil partnership or an enduring relationship and have made an application with his partner. This route therefore was barred to Bernard. As Bernard is single but also over 21 years old, he was in a position to apply for adoption of Adam. However, had the judge not given him permission to apply, he would have had to wait until Adam had lived with him for three years before he could have applied.

In addition, had Bernard not been Catherine’s son, Bernard, Catherine and David would have all been guilty of offences under current legislation for arranging an adoption and could have faced criminal prosecution. This is because Bernard was not Adam’s guardian nor his legal parent, nor Catherine’s partner. However, due to the unusual circumstances, Adam and Bernard share Catherine as a mother (Bernard legally and biologically, Adam legally). This means that Bernard is Adam’s legal brother and therefore classed as a relative. In the eyes of the law, the focus is on the legal status rather than the biological reality.

In any adoption case the court’s paramount consideration is always the child’s welfare, throughout his or her life. The judge considered this welfare checklist and had reports from the local authority and Adam’s guardian, who along with Catherine and David as the other parties, supported Bernard’s application for adoption of Adam. The judge in allowing the application for adoption stressed that a critical feature for her was the support of the parties and the wider family for the application and the close relationships within this family.

The judge dealing with Bernard’s application emphasised that whilst the circumstances of this case are highly unusual, it is entirely lawful. She noted that the family had thought carefully about the arrangement 'pausing, reflecting and seeking advice at each stage'.

Anna Worwood, partner in Penningtons Manches’ family law team, commented: “This case highlights how complex the law surrounding surrogacy and adoption is. The processes involved were rightly described by the judge as a ‘legal minefield’. It is therefore imperative to obtain comprehensive legal advice to have a successful outcome. This is an area of law which struggles to keep up with scientific advances. The case also demonstrates the need for careful consideration by parties at each stage of the process and that support from the wider family can be critical.”

If you would like more information, the family team has answered some frequently asked questions about surrogacy law and parental orders.

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