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As clinicians, this case1 raises both personal and professional challenges.
A key issue is who carries legal parental responsibility for the difficult decisions that may be required around life-sustaining care in baby T. Medicolegally, we understand that the surrogate mother (M) holds legal parental responsibility for baby T until this can be transferred to the intended parents (IPs).2 But this process can take many months to complete, after the birth of baby (Box 1). As M is now critically ill and unable to engage in any discussion around the care of her baby, who becomes the legal guardian of the baby, for complex decision making that involves either (1) reorientation of care away from intensive care with the inevitable consequence of death in this extremely premature baby, or (2) continuing this life-sustaining treatment with a high likelihood for major neonatal morbidity and longer term disability? Does it pass onto one of the IPs as the genetic father, or does this responsibility fall on the neonatal consultant managing the baby in intensive care? And if an antenatal surrogacy agreement had existed, is it legally binding for inclusion of the IPs perspectives in the decision-making, especially if our medical decision making turns out to be at discord with the beliefs and wishes of the IPs for baby T?
Current surrogacy proceedings in the UK.2 6–8 The Law Commission UK5 is currently reviewing the decision on whether legal parenthood to intended parents can be effected immediately at the time of birth of the baby.
A parental order reassigns parenthood, and transfers full parental responsibility from the surrogate parent/s to the intended parents.
Intended parents must apply for a parental order in all surrogacy cases.
To obtain a parental order, all of the following must be met:
The intended parents:
Both be over 18.
Be married, civil partners or living together in an enduring family relationship.
At least one of them must be a biological parent of the child.
At least one of them must …
Contributors TP was responsible for initiating and developing the commentary. All authors contributed to the commentary, and approved the final version.
Funding The authors have not declared a specific grant for this research from any funding agency in the public, commercial or not-for-profit sectors.
Competing interests None declared.
Provenance and peer review Not commissioned; internally peer reviewed.
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