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Surrogate decision making in crisis
  1. Bianca Jackson1,
  2. Kirsty Horsey2,
  3. Andrew Spearman3
  1. 1Barrister, Coram Chambers, London, UK
  2. 2Kent Law School, University of Kent, Canterbury, CT2 7NS, UK
  3. 3Partner, Laytons LLP, London, UK
  1. Correspondence to Bianca Jackson, Coram Chambers, London, UK; bianca.jackson{at}surrogacyuk.org

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The case states that a male same-sex couple (the intended fathers) entered into a surrogacy arrangement with an unrelated surrogate (M) using donor sperm and the surrogate’s eggs. M is the legal mother pursuant to s33 of the Human Fertilisation and Embryology Act (HFEA) 2008. Though the facts tell us that there was no legally binding arrangement, this is in fact the position of the law: under s1A Surrogacy Arrangements Act, no surrogacy arrangements can ever be binding on the parties.

Issue 1: whose sperm?

It is not clear whether the donor sperm is from one of the same-sex couple or not. If it was donor sperm and not from either intended father, this is not an arrangement that would be recognised in law, as one of the men must be genetically related to the child in order for them to obtain legal parenthood via a parental order, under s54 HFEA 2008. They could apply to adopt the child, although they may fall foul of adoption legislation1 if any money has moved between them and M and they do not fall within an exemption.2 In any event, an adoption cannot be achieved in time for them to obtain legal parenthood in a crisis situation.

In the absence of a biological connection and the resulting legal parenthood (discussed below), in order to obtain parental responsibility for the child to allow them to make decisions about Baby T’s care, the men would need to apply for leave to apply for a child arrangements order pursuant to s10 Children Act 1989. However, in the …

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Footnotes

  • Contributors All authors listed met the ICMJE criteria for authorship.

  • 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.

  • Ss.92(1) & 95 Adoption and Children Act 2002

  • Ibid, ss.92(3) & 96(1)

  • Assuming the pregnancy was achieved via treatment at a licenced centre—if it was not then the legislation does not determine legal parenthood and common law presumptions apply.

  • And subject to the insemination or IVF having taken place in the course of licenced treatment.

  • Ss.2 (2) & 4 (1), Children Act 1989

  • https://www.lawcom.gov.uk/surrogacy/ Accessed 17 Mar 2021

  • Law Commission of England and Wales and Scottish Law Commission, Building Families through Surrogacy: A New Law – A Joint Consultation Paper (6 June 2019), 8.2

  • ibid 8.29

  • ibid 8.34

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