Our International Family Team advises on complex surrogacy case

Our International Family Group advises a dual nationality Canadian and British man who split up from his same sex partner whilst an application for a parental order is pending before the High Court. This case is highly unusual as it shows the importance for unmarried same sex couples of seeking early legal advice before entering into surrogacy agreements worldwide.

Facts in the case

The intended parents are both wealthy individuals who entered into a surrogacy agreement in Canada.  They had arranged the surrogacy through a fertility clinic and the surrogate mother gave birth in December 2017.  The couple had been told by the clinic that they would be able to bring the child born of the surrogacy arrangement into England immediately following the birth and that they would be able to apply for a Parental Order in England so that they would be recognised as the legal parents of the surrogate child and the surrogate mother’s rights and responsibilities towards the child would be extinguished.  

After splitting up from his partner, our client, who is the biological father of the child which had been conceived using donor eggs, has discovered, however, that there may be legal complications and sought our advice about these.  

How we have helped our client 

We explained that their first consideration should be the question of how they were able to bring the surrogate child into the UK.  Under English law, the child would not be recognised as the legal child of either our client (despite the biological connection) or his former partner.  Although our client was the biological father, and should be able to pass his British citizenship to the child if the surrogate mother were unmarried, the surrogate mother in this case was married and English law would therefore treat the surrogate mother and her husband as the legal parents of the child.  Expert advice from a Canadian lawyer confirmed that, under Canadian law, the child would be regarded as the legal child of our client and his former partner and would therefore not have any legal status in Canada.  In simple terms, the child would effectively be “stateless” following its birth. 

In addition to the above immigration difficulties, it will also be difficult to obtain a Parental Order for the child as our client is not married, in a civil partnership or in an enduring relationship with his ex partner so there may be issues with the application to the High Court when directions were made for both IPs to provide statements in support of their application, to include detail setting out the expenses paid to the clinic and, through the clinic, to the surrogate mother. The directions also included a direction for a Children and Family Court Reporter to prepare a report for the Court dealing with the question of whether our client and his former partner had complied with the necessary conditions under the legislation to enable them to obtain a Parental Order.  

The Court will need to confirm if it will be prepared to grant a Parental Order in favour of our client under its inherent jurisdiction despite the fact that the s54 criteria are currently not being met.  The Parental Order, in a similar way to an Adoption Order, would ensure that our client would be recognised under English law as the legal parent of the surrogate child (in place of the surrogate mother’s husband).

Our client has also instructed Keelin McCarthy and Julie O’Malley, both at Lamb Building, to provide specialist advice on immigration and surrogacy law. 

For more information, please contact a member of our Client Relations Team by: