Thinking of surrogacy to start a family? get legal advice first!

Anyone who is considering starting a family through surrogacy should first seek legal advice – as a gay couple found to their cost after their twins were born to an illiterate mother in India. The couple’s failure to understand the formalities meant that it took more than three years and a High Court hearing to finally establish their legal status as parents.

The male couple paid the woman £16,000 through a surrogacy centre in India and she gave birth to their children in 2011. The couple were living abroad at the time and ended up in a serious legal muddle with the authorities when they brought the children back to the UK in 2014.

Although the children’s British citizenship was eventually recognised, the couple’s parental rights remained in serious doubt. That was despite DNA tests proving that one of the men's sperm had been used to fertilise a donor egg and that he was the children's genetic father.

The only evidence that the mother had consented to the surrogacy was in the form of an agreement bearing her thumb print. There was also a possibility that she might have been married when she gave birth – in which case her husband's consent would normally have been needed as well for the surrogacy to be legal.

The only solution for the couple was to seek a judicial order recognising their parenthood. In granting their application, the Court found that all reasonable efforts had been made to establish contact with the surrogate mother but that she ‘could not be found’. In those circumstances, it was appropriate to dispense with her consent.

The couple’s application for parental orders was made far outside the normal six-month time limit laid down by the Human Embryology and Fertilisation Act 2008. However, the Court found that the children would suffer 'immense and irremediable prejudice' if that time bar was rigidly applied. Granting both men the full legal rights of fathers, the Court had no doubt that that would best serve the children’s welfare.

Contact: Paul Antoniou