Case comment: Re T (a child) (surrogacy: residence order) [2011] EWHC 33 (fam)
| Author | Emma Woolley |
| Pages | 111-113 |
S.S.L.R. Case Comment: Re T
111
Vol. 1
Case comment: Re T (a child) (surrogacy: residence
order) [2011] EWHC 33 (fam)
Emma Woolley
Introduction
The inherent risks of surrogacy has been thrust into the media spotlight in the
recent case Re T
1 due to the possible complexities attached for the parties
involved. The complication lies with the clear and unequivocal legal definition
of mother in British law,2 that the woman who carries a child is the child‟s
mother. 3 Hence, following a partial surrogacy arrangement, there is a
possibility of multiple claims to parenthood which allows for uncertainty as
there is nothing a commissioning couple can do to secure legal parenthood
prior to the birth of their child. The implications following a surrogacy
arrangement is exemplified in the authority Re T which awarded legal
parenthood to the surrogate mother.
Facts and Decisions by the Court
he facts of the case are as follows. The commissioning couple arranged a
partial surrogacy arrangement with a surrogate who they met over the
internet. This was a private arrangement whereby the commissioni ng
father‟s sperm was used to inseminate the surrogate mother and it was agreed
that once the child was born it would be handed over to the commissioning
couple. The agreement was not regulated by a fertility clinic or set up by a
non-profit agency which meant that they were not given the appropriate
information or support. The relationship broke down when the surrogate
mother was gestating the child and she subsequently changed her mind,
deciding to keep the child. This led to a very complex scenario when assigning
legal parenthood as the surrogate mother was also the biological mother. As
surrogacy arrangements are not legally binding contracts, there was little that
the commissioning parents could do to secure legal parenthood prior to the
birth of the child; once the child was born they applied for a Residence Order
to acquire the necessary legal parenthood.
1 (a child) (surrogacy: residence order) [20 11] EWH C 33 (fam)
2 Jackson E, Regulating Reproduction, law, Technology and Autonomy (Hart Publishing Ltd.
Oxford 2001) 266
3 Human Fertil isation and Embryology Act 2008 , s. 33(1). The woman, who is carryi ng or has
carried a chil d as a result of the placing in her of an embryo or of sperm and eggs, and no
other woman, is to be treated as the mother of the child.
T
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