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British man denied parental responsibility for child born as a result of US surrogacy (9 September 2015)

Date: 09/09/2015
Duncan Lewis, Child Care Solicitors, British man denied parental responsibility for child born as a result of US surrogacy

The President of the Family Division, Sir James Munby, has ruled that a British father who paid an American surrogate mother to deliver a child for him cannot be awarded sole parental responsibility for his child in the British courts.

The unnamed father arranged surrogacy through an agency in Minnesota in accordance with the law of Illinois. The child – referred to only as Z – was conceived with the father’s sperm and a third -party donor egg, which was implanted into the surrogate mother, who is unmarried.

The child was born in August 2014 in the State of Minnesota and the British father applied for and obtained a declaratory judgment from a court in Minnesota, which relieved the surrogate mother of legal rights or responsibilities for Z – and established the father as the sole parent of the child.

The surrogate mother had been paid $5,637.10 in expenses, $1,100 in compensation for the inconvenience of fertility treatment, $25,000 in pregnancy compensation – and $2,000 in Caesarean section compensation.

The agency received $12,000, making the total payment for the surrogacy agreement of $33,737.10.

The father has now returned to the UK with his child and in February 2015 had applied to the Family Division for a parental order giving him parental responsibility under Section 54 of the Human Fertilisation and Embryology Act 2008.

However, in the courts of England and Wales, only a couple can be awarded parental responsibility.

Sir James Munby considered whether Section 54(1) could be “read down” in accordance with Section 3(1) of the Human Rights Act 1998, so as to enable parental responsibility to be awarded to just one person – and ruled that it could not and the father was not entitled to have parental responsibility for the child.

Furthermore, although the US the court had accepted the father’s application to be recognised as the sole parent of Z and had relieved the surrogate mother of any responsibility towards the child, in the UK she is still treated as being the child’s mother.

As a result of the judgment, the child has been made a ward of court in the UK.

The court has said that there are only two possible routes by which parental responsibility in British courts can be transferred from the child’s surrogate mother to the father: either by a parental order in accordance with Section 54 Human Fertilisation and Embryology Act 2008 – which the father had applied for in February and which can only be awarded to two people; or by the father adopting his own biological child in accordance with Section 46 of the Adoption and Children Act 2002.

Sir James Munby ruled that as a single parent and as a sole applicant, the father was not eligible to be considered for parental responsibility under Section 54(1) of the 2008 Act.

It is possible the father may apply to the court for a declaration of incompatibility under the Human Rights Act, under which the current law might be changed to enable him to be awarded parental responsibility as the child’s sole parent.

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