Rollingsons successfully acts in complex surrogacy case

The Head of the Family Law Department at Rollingsons, Jeetesh Patel, recently successfully acted for the applicants in the case of R and S v T (Surrogacy: Service, Consent and Payments) [2015] at the Royal Courts of Justice on 13^th March 2015.

This was an application for a parental order from R and S, a couple in their early sixties who have been married for 38 years, concerning twins aged 18 months who were born following a surrogacy arrangement entered into by the applicants in a surrogacy clinic in Ukraine. Commercial surrogacy arrangements are permitted in Ukraine. The applicants had spent many years trying to conceive a child of their own.

The children were born around the time the period of civil unrest in Ukraine started. The applicants were in Ukraine at the time of the birth but their exit with the children was delayed for 6 months before they were able to return. The applicants obtained the written consent of the surrogate mother to the making of a parental order in a notarised consent on 7^th February 2014, but following that date they were unable to make further contact with her despite their attempts to locate her. Having failed to serve the surrogate mother with their application, they turned to the court.

The parental orders were made, but the case was complicated due to the fact that it was not possible to establish whether the eggs used were donor or the surrogate mother’s eggs. Further, there was a lack of clarity about the payments made to the surrogate mother since the part of the agreement between the applicants and the surrogate mother that should set out the payments had no specific sums inserted.

The case highlighted the difficulties that can be encountered by commissioning parents if specialist legal advice is not sought before entering into an international surrogacy arrangement. The judge, Mrs Justice Theis DBE, highlighted the need for commissioning parents to:

1. Establish what the financial arrangements are with the surrogate mother.

2. Meet the surrogate mother, establish clear lines of communication with her and ensure that she (and her husband, if she is married) is aware of the requirement for her to give consent to the making of a parental order more than six weeks after the birth of the child.

3. Promptly make the application for a parental order (even if at the time of the application the applicants and the child have not yet returned to this jurisdiction) and ensure arrangements are in place for the surrogate mother to be serviced with the application and acknowledgement of service and, if required, arrangements are in place for translation and interpretation. The surrogate mother should also have access to independent legal advice, both in relation to the giving of consent and the application for a parental order.

The case was reported in the Family Law Hub and Family Law Week where the full judgement can be read.

Rollingsons have written a free online Guide to International Surrogacy which provides a great introduction to many of the key issues surrounding international surrogacy. Our family law solicitors are experienced in advising intended parents on surrogacy issues and helping them obtain parental orders. To arrange an initial consultation with a solicitor experienced in family law issues, please call us on 020 7611 4848 or email Jeetesh Patel on jpatel@rollingsons.co.uk.